Littlefield v. Boston & Albany Railroad , 146 Mass. 268 ( 1888 )

Knowlton, J.

The evidence at the trial tended to show, and the jury must have found, that from the year 1852 to the year 1880 the demandant occupied openly, adversely, exclusively, and continuously so much of the demanded property as was described by the jury in their verdict. The tenant did not contradict this evidence, but rested its defence solely upon certain deeds and accompanying evidence, under which it claimed an early title, and upon the St. of 1861, c. 100, which prevented the acquisition of titles by adverse possession against railroad companies in certain cases. If it showed such an ownership of any part of the land as to make this statute applicable, the verdict must be set aside; otherwise, it must stand.

To support its claim, the tenant introduced three deeds to the Boston and Worcester Railroad Corporation, to whose rights it had succeeded, made by the selectmen of Newton, and purporting to convey portions of the land of said town, one dated September 25, 1833, another dated October 1, 1839, and the third dated June 6, 1843. There was no evidence that the first covered any part of the demanded premises, nor that the third was ever authorized by said town or recognized by it in any way. The second included in its description a part or all of the land in controversy. If under this deed the land described in it belonged to the railroad, and came within the meaning of the language referring to lands of railroads in the St. of 1861, c. 100, the passage of that statute prevented the acquisition afterward of a title to the property by adverse possession, and the previous possession relied on by the demandant having been for less than twenty years, her case was not made out.

Three objections were made to the validity of this deed. First, that the language of the vote of the town under which the selectmen acted was not broad enough to authorize a sale; secondly, that, if authority to sell was given by the vote, it was to the board of selectmen then existing, and not to that of the next year; and thirdly, that the deed was not properly executed to convey the interest of the town

The first and last of these it is unnecessary to consider. For if we assume, as was decided in Willard v. Newburyport, 12 Pick. 227, in regard to a similar vote, that a reference of this subject to the selectmen conferred upon them authority, not merely to determine what should be done, but to do it, we think the authority was not intended to extend to other boards of selectmen who might be elected in subsequent years. The subject of the vote was a proposed sale of certain land, and the question was whether the town would authorize it. In respect to the answer to be given, it was a question which looked to the present, and not to the future. If the language of the vote is construed as a reference of the whole matter to the selectmen with power to act, it implied that they were to deal with the question presently, and to decide it finally without unreasonable delay. The authority was conferred upon an existing board of public officers. The vote was passed in November, 1838, and, as the law then was, the term of office of all these officers would expire in the following spring, and a new board would then be chosen. It must be presumed that in giving this authority the voters considered the membership of the existing board, and that they did not intend to allow the question to be postponed and afterwards determined by a board of selectmen that might be elected the next or any subsequent year. We think, therefore, that the deed made in October, 1839, was without authority of the town, and that the railroad companies acquired no title under it.

There was no evidence which would warrant the jury in finding that the Boston and Worcester Railroad Corporation, or the tenant, had actual possession of any part of the premises described in the verdict prior to the year 1880; and even if the St. of 1861, c. 100, — the language of which is very different from that in the substituted St. of 1874, c. 372, § 107, (Pub. Sts. c. 112, § 215,) — could be held to apply to land outside of a located or established railroad, and if the evidence in this case would warrant a finding that the town of Newton received a consideration for this land, we do not think the equitable right of the tenant or of its predecessor, if either of them had any, would prevent the acquisition of a title by the long continued adverse possession of another.

It follows that the St. of 1861, c. 100, has no application to this case, and that there was nothing to control the effect of the adverse possession proved at the trial. All the requests for instructions to the jury were either in conflict in some particular with the law as we have stated it, or were immaterial, and there was no error in the instructions given.

Exceptions overruled.