Curtis v. Angier , 70 Mass. 547 ( 1855 )

Shaw, C. J.^*

It appears very clearly that the two ancient rangeways were established highways. It is not the amount or quantity of travel on a road which makes it a public way; but the right which every one has to use it, without encroaching on the right of another. So the road which extended from the northerly terminus of the westerly rangeway to Fish Lane, afterwards laid out as South Street, though not much used, was an ancient public way, and was so recognized by the proprietors of Middlesex Canal, by building and maintaining a bridge over their canal, to connect the western rangeway with the way in question. These ways were important to several estates, amongst which was the Adams farm, represented in this suit by the-defendant, as the agent and tenant of the owners.

It appears that when the proprietors of the canal, more than half a century ago, made their canal, they made a road on the north bank of it, in the same general direction with the old road, and coinciding with it to some extent, but not entirely. This road along the north bank of the canal was made much wider than was necessary for a towpath, was graded and levelled so as to fit it for all the species of travel which used to pass over the old road, and connected with the termination of the western rangeway. From that time to the discontinuance of the canal, it was used not only as a towpath for the canal, but as a road for all the travel going northerly and easterly through the old rangeway, and also by the proprietors of the canal themselves, for the locks and lock-keeper’s house half a mile above. This road along the bank of the canal was so used without prohibition, interference or objection on the part of the canal proprietors.

The court are strongly inclined to the opinion that these facts show a dedication of the towpath road along the north bank of the canal, as a substitute for the old road, which it superseded and rendered no longer necessary. They must have a towpath, and it must be next adjoining the canal; some widening and grading made it equally serviceable for a travelled road. They admitted the existence of the old road, and connected the western rangeway with it, by erecting and maintaining a bridge over their canal. If a dedication, it was to all the public uses to which the old road was subject.

But, without going into the peculiar characteristics of a way by dedication, the court are all of opinion that the owners of the Adams house and estate, as against the proprietors of the canal, had acquired a right of way, by- adverse use and possession, before the discontinuance of the canal. It appears that the occupants of the Adams house, and owners of the estate, had the free use, enjoyment and possession of the way in question; that it was adverse, uninterrupted and unquestioned, from the time of laying out the towpath road, which affords ample evidence of a grant. The land of the canal proprietors, over which th:s road was laid, having been subject to the servitude, they could not make any conveyance of their estate, which would extinguish the right of way thus acquired. The plaintiff therefore took his title, subject to that right of way, and had no right to dig away the soil on which it was made, or erect a fence across to obstruct it. The defendant, therefore, acting in the right and by the authority of the owners of. the Adams house, was justifiable in removing such fence, and in doing so committed no trespass.

Judgment for the defendant.

* Bigelow, J. did not sit in this case.