Flagg v. Flagg , 82 Mass. 175 ( 1860 )

Bigelow, C. J.

By St. 1786, c. 67, § 1, which embodied the provincial statutes directing the method of laying out highways and other roads in a town, no distinction is made between those ways which were established for “ the use of such town only,” and those which were laid out “ for the use of one or more individuals thereof or proprietors therein.” The term “ private or particular way ” is there used, not to designate or define the use or purpose for which it was laid out, or the nature or extent of the easement which it created, but in contradistinction to a highway or public road, which was not confined within the boundaries or territory of a town, but extended from town to town or place to place, and which could be laid out only by the court of sessions. Nor was it intended by the phrases “ for the use of such town only,” or “ for the use of one or more individuals thereof or proprietors therein,” to limit the easement or rights created by the way to the inhabitants of the town or the owners of land therein, or to particular individuals, but to describe it as a road for local accommodation and con-venience, which the selectmen were empowered to lay out at the expense of the town or the persons who would receive the greatest benefit from the establishment of the way. This view of the construction of the language of the statute was taken in the early case of Cragie v. Mellen, 6 Mass. 13, in which the court say that it is evident that the intention of the legislature in using these words was only to distinguish the cases within the authority of towns by their selectmen from those committed to the court of sessions. The statute was evidently framed with a design to give jurisdiction and define its extent in the matter of laying out private ways for the use of towns and individuals, but was not intended to declare or limit the use or easement which would be created in them by its exercise. It follows that the argument, in support of the position that a private way laid out by a town for the use or benefit of individuals creates only a right personal to those for whose convenience and accommodation it was originally established or appurtenant to their estates, is not sustained by a just interpretation of the words of the statute. Nor can we see any good reason for holding that such is the legal effect of the establishment of such ways. On the contrary, there are decisive considerations which lead to an opposite conclusion. In the first place, as has been already stated, private ways are put by the statute on the same footing as town ways; but no one would contend, because the latter are laid out for the use of the town only, that after they are established, the right to their use and enjoyment is personal to the inhabitants of the town. In the next place, it is inconsistent with the whole scope of the provisions of the statutes relating to such ways, to construe them as applicable only to the creation and protection of private rights and easements. They are laid out by public officers and accepted by a vote of the town; they can be discontinued by public authority, even against the consent of those for whose accommodation they were originally laid out; the damages occasioned by their construction may be paid in whole or in part from the treasury of the town; they cannot be lawfully encumbraneed or obstructed by any one by means of fences or buildings erected within their limits, unless they have been suffered to remain there for a period of time sufficiently long to authorize a similar obstruction in a highway, and such unlawful obstructions are treated as nuisances; and finally, it would not be competent for selectmen and towns to locate and lay them out for private use only as personal rights or easements belonging to individuals, because no one can be authorized to create an easement in the land of one against his consent for the benefit of another. It would be a violation of the fundamental principle by which private property is made secure from any sequestration or appropriation except for a public use. It is a mistake therefore to suppose that a private way laid out under St. 1786, c. 67, § 1, creates a right or easement which is personal in its nature and appurtenant to land, so that it may be extinguished by unity of seisin and title. It is a private way, only as distinguished from a highway or common road, and because in its origin it was laid out for the accommodation and benefit of individuals. But when laid out and established, it becomes a way or easement in its nature public, which any one having occasion may use and enjoy until it is lawfully dis-> continued.

Such seems to have been the character of the way which was laid out by the selectmen and the town of Boylston in the year 1809, and concerning which the present controversy has arisen. It is called in the vote of the town a private way; nor is there any limitation prescribed as to the mode of its use and enjoyment.

It was suggested that a restriction was imposed' by the use of the term “ a bridle road,” in the location by the selectmen. But we do not think this phrase has any such definite or well settled meaning in the law, or by common usage in this commonwealth, as to authorize us to infer that it was inserted in the location in the present instance with an intent to confine the right of way to a particular class of animals or other special mode of use.

It is hardly necessary to add that the defendant is not debarred from the use of the road by the covenant in his deed to the plaintiff. Such a covenant cannot operate by way of estoppel so as to prevent a party from claiming a right to enjoy a public way or easement. Judgment for the defendants