Vye v. City of Medford

Sanderson, J. This is a petition to register title to land. The questions involved relate to the location of its westerly boundary line. It appears from the decision of the judge of the Land Court that “The petitioner owns a tract of land in Medford bounded northerly by High Street, southerly by the Mystic Valley Parkway and westerly by the easterly line of Winthrop Street. The land slopes southerly from High Street to a brook near the Parkway, the grade of Winthrop Street being several feet above it. Along the easterly side of the travelled road, at the top of the banking, is a fence which has existed substantially in its present-location since at least 1874. The petitioner contends that the easterly line of Winthrop Street is coincident with the line of. this fence. The respondent city contends that the easterly line of Winthrop Street is the [211] line of the county road as located by a layout of the county commissioners in 1857. This line is along the foot of the banking. Both lines aré shown on the plan filed in this case. The petitioner obtained title in 1926 from the trustees of the Alvin D. Puffer estate by a deed which described the land as bounded by the easterly line of Winthrop Street and by measurements which, although stated to be ‘more or less’, carried to the line of the fence. He was also told by his grantors that the fence marked his boundary line.” The petitioner’s predecessors in title for more than forty years before 1917 supposed “they owned to the line of the fence, and had no actual knowledge of the 1857 highway location.” The judge further stated that “the northerly portion [of the land] was fenced in for pasturage. The Puffers kept cattle in the pasture, and from time to time repaired and maintained the fence. There was a bar-way or gate-way in the fence with a run-way down the bank over which hay was hauled out from the southerly portion. There was a ditch running along the foot of the bank from near High Street southerly to the brook. Although there is some evidence that cows grazed on the banking between this ditch and the fence, ... I find, that there was very little grass growing on the bank and no actual use or occupation of the strip now in dispute beyond the possible occasional straying of a cow onto it, and the use of the run-way across it. . . . After the layout by the county commissioners in 1857 it appears from the records of the selectmen of Medford that the town entered on the land so taken for the purpose of construction, and in 1858 completed the construction of the county road. I find that the banking was a part of such construction. I also find from the town records that in 1858 the town built a fence on said new county road between the bridge over the Mystic River to the south and High Street. In 1874 the town fenced Winthrop Street. In 1910 the town repaired the present fence. Mr. Puffer did not know of this last act by the town, ... so far as the fence was built and maintained by the town, it was clearly for the purpose of safety in public travel. So far as it was repaired by the Puffers, it was for the purpose of keeping their cattle in. I do not find that it [212] was built or maintained as a boundary line fence. Neither do I find anything in the evidence that would tend to bring v home to the town authorities knowledge of any claim by the Puffers of an occupation adverse to the public easement beyond the fine of the highway as located by the county commissioners.” The strip of land in dispute has never been used as a part of the travelled way but so far as necessary has been used for banking in the construction of the highway. The judge found that the line to which the petitioner acquired title was the line of Winthrop Street as located as a county way in 1857, a line accurately determined by existing monuments and correctly shown on the filed plan. A decree for the petitioner to that line was ordered. The petitioner’s contention is based upon R. L. c. 53, § 1 (now virtually repealed. See St. 1917, c. 344, Part VI, § 1) which provided in part that “If buildings or fences have been erected and continued for more than twenty years, fronting upon or against a highway, town way, private way, . . . street, lane or alley . . . and from the length of time or otherwise the boundaries thereof are not known and cannot be made certain by the records or by monuments, such buildings or fences shall be taken to be the true boundaries thereof. If boundaries of such ways or places can be made certain any building or fence thereon may upon the presentment' of a grand jury be removed as a nuisance unless it has continued at least forty years.” This statute had its origin in St. 1734-5, c. 2, § 2, which, in its title and preamble, purported to be an act to prevent encroachments and encumbrances upon highways, and defined the rights as between adjoining owners and the public when an encroaching fence has been maintained a specified number of years. In Commonwealth v. Tucker, 2 Pick. 44, 46, the court referred to the statute as containing “a provision in favor of persons who have encroached and have had possession for a certain number of years.” In Plumer v. Brown, 8 Met. 578, 581, the opinion stated that the statute was “not intended to protect individuals from the encroachments of the public, but to protect the public against the encroachments of individuals.” In [213] Cutter v. Cambridge, 6 Allen, 20, the plaintiff’s right to a title to the line of his fence was recognized if he could prove that the fence had been maintained under a claim of right for forty years. In Winslow v. Nayson, 113 Mass. 411, 421, the plaintiffs’ rights were based upon the maintenance of "their fence in the same place” for forty years. In Gifford v. Westport, 190 Mass. 323, 324, and in Smith v. Adams, 206 Mass. 513, 514, the plaintiff’s rights under the statute were said to be based on adverse possession. In Frost Coal Co. v. Boston, 259 Mass. 354, 359, the structures in question had been maintained by the petitioner and his predecessors in title. The history of the statute and the decisions under it point to the conclusion that the petitioner must fail unless he can prove that the fence was a boundary line fence erected and continued by him or his predecessors in title as claimants adverse to the town for the statutory period. The rights of the public in the whole width of the way as located and laid out were not lost by using less than the whole width for the travelled way. Harrington v. County Commissioners, 22 Pick. 263, 265, 268. Compensation to landowners is based on the full width taken even though a part only is constructed for travel. Como v. Worcester, 177 Mass. 543. The use of a part of the land taken for an embankment to support the travelled way is a use of the land for a highway purpose. Doon v. Natick, 171 Mass. 228. A municipality is under an obligation to maintain railings where steep banks or dangerous declivities exist so near the travelled road as to expose people travelling thereon to injury. G. L. e. 84, § 15. Sparhawk v. Salem, 1 Allen, 30, 32. Commonwealth v. Wilmington, 105 Mass. 599, 601. The petitioner had the burden of proving that he was entitled to have the strip of land in controversy registered. The findings of the judge of the Land Court on evidence not reported are final. G. L. c. 185, § 15. Levenson v. Ciampa, 251 Mass. 379, 382. Boston Five Cents Savings Bank v. Massachusetts General Hospital, 255 Mass. 583, 586. No error of law appears either in his refusal to give the rulings requested or in the order entered. Order for decree affirmed.