Fitzgerald v. Lewis , 164 Mass. 495 ( 1895 )

Field, C. J.

The first contention of the plaintiffs is that St. 1890, c. 410, is in effect a repeal of Pub. Sts. c. 203, § 99, and a substitution therefor of a new statute, and that Pub. Sts. c. 203, § 100, does not apply to the new statute. St. 1890, c. 410, begins as follows: “ Section ninety-nine of chapter two hundred and three of the Public Statutes is hereby amended so as to read as follows ”; and then follows a somewhat different provision from that contained in Pub. Sts. c. 203, § 99, but upon the same subject matter. This form of amendment is one often adopted by the Legislature, and the effect of it is to put the language of the new statute in place of that of the old, and other provisions of statute relating to the old statute and not inconsistent with the new are held to apply to the new after that statute takes effect.

The next contention of the plaintiffs is that, on the evidence, “ the overseers of the poor had no right to post the land.” The argument is that, as the city of Springfield owned the land, the city council of the city alone had authority to order notices to be posted. We think that the evidence was sufficient to warrant the jury, in finding that the overseers of the poor had authority to order the notices to be posted, and that, if the evidence was believed by the jury, it was their duty so to find. By Pub. Sts. c. 33, § 3, when no directors are chosen the overseers of the poor have the inspection and government of the almshouse. Not only was there no evidence that any directors had been chosen, but the ordinances of the city put in evidence show that the overseers of the poor had the charge and direction of the almshouse or city farm. The exceptions also recite that “ there was evidence tending to show that the overseers of the poor had been, and were in fact, in control of said farm.” The overseers of the poor, if in control of the farm, were in control either as public officers or as agents of the city, (Neff v. Wellesley, 148 Mass. 487,) and were, we think, persons having lawful control under the laws and the ordinances of the city for the purpose of excluding trespassers.

The next contention of the plaintiffs is, that the notices posted were unauthenticated by any signatures, and did not express the authority by which they had been posted. But there is nothing in the statute requiring the notices posted to be signed. It is common knowledge that similar notices posted on land, such as guide posts, notices of private ways, and notices at railroad crossings, are not signed. It would be almost impossible to have them signed in the handwriting of the persons who ordered them posted, and a printed facsimile would afford no assurance of the genuineness of the signatures. The Legislature in enacting that persons may be forbidden from entering upon certain land by “notice posted thereon,” without prescribing the form of the notice, must be held to have intended that the notices might be posted in a reasonable manner, according to the usual way in which similar notices are posted. The instruction upon this part of the case seems to us correct.

It is suggested in the brief of the plaintiffs, that an innocent entry by a person upon land under a claim of right cannot be an entry without right within the meaning of the statute, even although the land be found to belong to another person. The plaintiffs proved no right to enter upon the land of the city. The Pub. Sts. c. 203, § 99, forbade a wilful entry; St. 1890, e. 410, changed this and forbids an entry without right. There is nothing in the last named statute which indicates that a belief on the part of the person entering upon land not in his control that the land is his, is to be regarded as a justification. He must be forbidden to enter by the person having lawful control of the premises in the manner prescribed by the statute, and this having been done, if he enters without right upon the improved or enclosed land of another person, the offence is committed. It is not necessary that the person entering should actually see the notices posted, if they were reasonably distinct and, were posted in reasonably suitable places, so that by the exercise of due care they would be seen by persons who come upon the land. Smith v. Lowell, 139 Mass. 336.

The last point urged by the plaintiffs is the exception to the exclusion of evidence that Smith and Petersen were acquitted at the trial of the complaint against them for the alleged trespass. This evidence was rightly excluded. Fowle v. Child, ante, 210. Commonwealth v. Cheney, 141 Mass. 102. Commonwealth v. Waters, 11 Gray, 81.

These are all the questions argued by the plaintiffs, and we see no error in the exceptions. Exceptions overruled.