Smith v. Slocomb , 77 Mass. 280 ( 1858 )

Thomas, J.

That the plaintiff had not a fee in the land upon which the trespasses are alleged to have been committed, under the deed of the defendant to her, has already been determined by this court. Smith v. Slocomb, 9 Gray, 36. The introduction of the deed limiting the plaintiff’s estate to the side of the highway distinguishes this case from Rice v. Worcester, relied on by the plaintiff. The presumption which would exist in the absence of evidence is removed by the production of the deed.

Though the evidence shows some use of the soil of the highway by the plaintiff, it utterly fails to show any such adverse or exclusive possession as would enable her to maintain trespass quare clausum against the defendant. Her possession was at the best but concurrent.

Having no fee in the soil under the deed, and having upon the evidence acquired none by adverse possession, her right in the premises was a right of way, an easement. For the interruption of that easement this action of trespass quare clausum will not lie.

These defences were open upon the answer. The defendant denied that the close belonged to the plaintiff He might show this by the construction of the deed, or, if she claimed title by exclusive and adverse possession, he might show that in point of fact he had concurrent possession, and that her possession was not exclusive.

These points dispose of the cause; but in looking at the several rulings of which the plaintiff complains, they seem to us open to no just exception. The rulings, with the exception of the last, but recognize and affirm the plain principles before stated. The last was not pressed by the learned counsel, for clearly no injury was done by placing the plough of the defendant in the door yard of the estate then in the possession of the plaintiff’s tenant, for which she as the reversioner could maintain trespass. Exceptions overruled.