Atwater v. Bodfish , 77 Mass. 150 ( 1858 )

Bigelow, J.

1. The way across lots Nos. 3 and 4 was extinguished by unity of possession and title in Pliny Chapin; he having acquired title to and occupied both lots from 1846 to 1849, when he conveyed No. 4 to Bliss, and after which, in 1855, he conveyed No. 3 to the plaintiff. Neither of these deeds contained any reservation of a right of way.

2. The right of way to lot No. 2 from 1809 to 1835 was only used for the purpose of taking wood from that lot, while the whole tract was wild and uncultivated. Such a right cannot be extended to the larger use claimed by the plaintiff as a way for all purposes, now that the land is occupied for dwellings and purposes of cultivation. It must be limited to the use for which it is shown by the evidence to have been originally designed. Since 1835, the use of the way has been interrupted, so that no right of way has been gained by adverse user since that time.

3. The act of Bliss in laying out a new track across another part of lot No. 4 cannot be regarded as an absolute dedication of a way over his land. If a private way can be established between parties by dedication, it must appear to have been done with a full knowledge of the rights of the parties, thus indicating a clear intent by the party owning land to devote his land to such purpose so as to give to others an irrevocable right to use it. But in the present case, the new way laid out by Bliss was only a substitute for the old one alleged to exist over another part of his land. The right to the original way being unfounded, the way substituted for it cannot be held to stand on a better title. Judgment for the defendant.