Andrew v. Nantasket Beach Railroad , 152 Mass. 506 ( 1890 )

Devens, J.

The respondent requested a ruling that, upon the evidence offered by the petitioner, which was all there was in the case, the petitioner was not entitled to maintain this proceeding. This request was properly refused. The evidence was plenary that for a considerable number of years the petitioner’s intestate had been in possession of the premises, doing acts herself or through her agents which must be construed as an assertion of title. The only question which could be debated in relation thereto was whether this adverse occupation had existed for twenty years. But even if it had not so existed, a possessory title such as unquestionably existed was sufficient to sustain the petition, as the intestate was in undisputed possession and occupation of the land when taken by the respondent for its railroad, and had been so for a considerable number of years. By the St. of 1874, c. 372, § 63, (Pub. Sts. c. 112, § 95,) the railroad was rendered liable to pay all damages occasioned by the laying out, making, or maintaining its road. These damages are to be estimated “ in the manner provided with reference to the laying out of highways.” In State Lunatic Hospital v. Worcester, 1 Met. 437, it was held that a possessory title to land over which a highway is located is sufficient to entitle a party in possession to maintain his petition. In Hawkins v. County Commissioners, 2 Allen, 254, it was held that possession of land for nine years under a claim of title in fee is prima facie sufficient to support a petition for damages thereto, sustained by reason of the discontinuance of a highway. In Chandler v. Jamaica Pond Aqueduct, 125 Mass. 544, the petitioner for damages sustained by taking his land for the purposes of an aqueduct corporation, having shown a possessory title, was held entitled to maintain his petition, and evidence that he had only a base fee in part of the land was held inadmissible in reduction of his damages.

While the presiding judge in the case at bar held the petitioner to a more onerous rule than this, and required him to show a title by adverse possession for more than twenty years before the taking, yet the respondent has no ground of complaint, even if the evidence should fall short of. this, if it was clearly sufficient to show a present possessory title at that time. Its own request was properly refused, and all that could be required of the petitioner has been fully proved by uncontroverted evidence.

We are also of opinion, that there was evidence on which a jury might properly have found an adverse occupation of twenty years. Without undertaking to deal with it in detail, the evidence introduced by the petitioner, that the beach had for many years been treated as a part of the estate of the intestate, that slight occupation can be had of a beach situated as was this, that no one else had ever claimed either it or damages for its taking, and that the respondent itself in its location and plans had always described it as hers, were all proper to be considered, and justified the finding. That a part of the land taken was what is termed “ bluffs ” also appears by the bill of exceptions, and as to this the evidence of an adverse occupation for twenty years was clear. If it were necessary so to hold, this would be sufficient to sustain the ruling of the court, no attempt having been made by the respondent to have the different parcels of land distinguished. Exceptions overruled.