Inhabitants of Deerfield v. Connecticut River Railroad , 144 Mass. 325 ( 1887 )

Field, J.

We see no reason to doubt that a town may acquire by prescription a private right of way as appurtenant to a public burial ground belonging to the town. The statutes for many years past have provided that “ each town and city shall provide one or more suitable places for the interment of persons dying within its limits.” Pub. Sts. c. 82, § 9. Gen. Sts. c. 28, § 4. St. 1855, c. 257, § 1. As a town may acquire a private "right of way from a public way to a public burial ground by grant, it may acquire a similar right of way by prescription. Such a way, although open to use for all persons who have a right to go to and from the burial ground, is not necessarily a public way. It may not be a way for all travellers, but only for those who have rights in the burial ground. Suppose such a way were closed by a gate at the place where it meets a highway, and this gate were kept locked, and only opened by some person in charge of the burial ground for the purpose of admitting persons to it, this would be strong evidence that it was a private way. Austin's case, 1 Vent. 189. Thrower's case, 1 Vent. 208. Bateman v. Bluck, 18 Q. B. 870. Commonwealth v. Newbury, 2 Pick. 51. Commonwealth v. Low, 3 Pick. 408. Danforth v. Durell, 8 Allen, 242. Gordon v. Taunton, 126 Mass. 349. People v. Kingman, 24 N. Y. 559. People v. Jackson, 7 Mich. 432.

If the way in the present case is a public way, the remedy for an obstruction is not by an action by the town ; if it is a private way belonging to the town, the remedy is by such an action. There is no evidence that the old way was ever laid out either as a town way or highway, or that this way was altered, or the new way laid out either as a town way or highway. The defendant in its brief speaks of the new way as used for the purpose of travel to the depot as well as to the cemetery, but no such fact appears in the exceptions. So far as appears by the exceptions, the way was only used in going to and from the cemetery. We think that any use made of this way in going to and from this cemetery by the inhabitants of the town, or by persons holding rights in the cemetery derived from the town, and any acts of the town in constructing or repairing the way, were competent evidence to prove that a private right of way, as claimed by the plaintiff, had been acquired by prescription. The rulings upon the admission of evidence offered by the plaintiff to show an adverse use by the town were sufficiently favorable to the defendant. The defendant was entitled to. have the whole use made of the way put in evidence, but it was for the jury to determine whether this evidence showed that it was used as a public or as a private way.

The only exceptions of the defendant are to the refusal of the presiding judge to give the instructions requested. We think that there was evidence for the jury that the plaintiff had acquired a private way by prescription, unless the license put in evidence rendered the use permissive, and that the first request was rightly refused.

As to the second, request, it is to be noticed, as the defendant contends, “ that the proposed way as shown upon the plan was not a crossing, but provided for the occupation of land of the defendant for the purpose of conveniently reaching the crossing.” We see nothing in the case, however, which distinguishes it in respect to the question raised by this request from Fisher v. New York & New England Railroad, 135 Mass. 107. Whether a right of way can be acquired by prescription across a railroad track, since the passage of the St. of 1853, a. 414, § 4, has not been argued; but although this question has not been actually decided in the case of private ways, there are intimations that this can be done. See Gray v. Boston & Albany Railroad, 141 Mass. 407 ; Wright v. Boston & Albany Railroad, 142 Mass. 296. And in the case of a public way this was decided in Fitchburg Railroad v. Page, 131 Mass. 391, although the effect of this statute was not considered.

The third and fourth requests present questions of more difficulty. The petition of Ephraim Williams and others asked that an alteration be made “ in the now travelled road, by carrying the same about the width of the present road to the east, and by commencing the ascent of the hill two or three rods north of the house of Arad Munn.” This was asked because the existing road was “ unnecessarily steep and difficult of ascent.” The inhabitants of the town, at a town meeting duly warned, voted “ that the selectmen be a committee to grade the road to the burying ground agreeable to the petition of Ephraim Williams and others,” and “ that the assessors be authorized and directed to raise a sum not exceeding one hundred and fifty dollars, for the purpose of grading the said road to the burying ground.” These votes were authorized by articles in the warrant. The plaintiff owned the land except that part which it had conveyed to the defendant. The plaintiff had conveyed to the defendant “ all of the land of the said town there situate taken by the said railroad company according to the plan of the survey and location thereof filed in the office of the clerk of the courts for the said county of Franklin, to which said plan reference may be had for-a particular description of the land hereby conveyed.” No such plan was found in the office of the clerk, and one question in the case was whether any,such plan had ever been filed there. The parties make various contentions upon the effect of this deed if no such plan was filed, but there are no exceptions to any rulings of the court upon this part of the case. If there had been a valid location by the defendant, or if the deed conveyed the land within any defined location, the rights of the plaintiff in the old road over the location, or the land conveyed were extinguished. There is nothing in the petition of Ephraim Williams and others indicating that the alteration asked for would make it necessary to enter upon any land owned or occupied by the defendant, and the votes of the town did not authorize them to do this. The third request ought not therefore to have been granted.

On May 28,1855, after the votes of the town had been passed, two of the three selectmen and the president of the defendant corporation executed the agreement which appears in the exceptions. Whatever may be the effect of the deed, the correctness of the plaintiff’s fourth request, and of the instructions of the court given upon the same subject, must be tested by assuming that the jury may have found that the defendant owned or occupied as included in its location the land constituting a part of the new way, and obstructed this new way upon its own land or location. So far as this way was upon the land of the plaintiff, if it was a private way, the defendant is of course liable for obstructing it there. The court correctly ruled that the acts of the selectmen in building the road, if done under this agreement, were not adverse to the defendant, although they acted as a committee appointed by the town. The selectmen by virtue of their office had no authority whatever to construct a private way for the use of the inhabitants of the town. The question is of the effect of this agreement upon the rights of the plaintiff. The plaintiff is asserting a right in the land or location of the defendant, which it claims to have acquired, in its corporate capacity, as its property. To acquire a right of way over the land of another by prescription, the user must be adverse, that is, under a claim of right, and it must be acquiesced in by the owner of the land. It is not necessary that the claim of right be expressly made, or that the acquiescence be declared. If the user be of such a character that it may reasonably be inferred to be adverse, and if it be known to the owner of the land, and he does not interrupt it or object to it, a prescriptive right may be established. If the owner of the land, by reason of insanity or other disability, is incapable of acquiescing, or if the user is concealed and unknown to the owner of the land, a prescriptive right is not acquired. If the user is open, continuous, and of such a character that it may reasonably be inferred to be adverse, it has been held that the knowledge of the owner of the land may be inferred from these circumstances, and we think that if the user is adverse, and is so open and notorious that the owner of the land ought to have known of it, his acquiescence may be presumed, even if it is not found that he actually knew of it.

Undoubtedly, assent either expressed or in the mind is not necessary to constitute acquiescence. One reason for the modern law of prescription is, that the long-continued enjoyment of a privilege in the land of another, under a claim of right, ought not to be disturbed, if the owner of the land has unreasonably slept upon his rights. We are not, however, aware of any case in which it has been held, that, when the owner of land, in dealing with an agent, has expressly granted a license to the principal to construct a way over his land, and the way has been constructed by the agent for his principal under the license, and the principal has used the way in a manner consistent with the license, although without knowledge of it, a right of way has been acquired by prescription. The agent may have exceeded, and in the case at bar did exceed, his authority in making the agreement, which operates as a license; and, if the defendant were proceeding to enforce the agreement against the town, the want of authority would be fatal; and the town could not rely upon the agreement except by ratifying the acts of its agent. The plaintiff here does not rely upon the agreement, and the defendant does not necessarily rely upon it as a substantive matter of defence. If the plaintiff had no notice or knowledge of the agreement, then the defendant relies upon it as a fact qualifying the inference that otherwise might be drawn from its conduct in not disturbing the plaintiff in its use of the way. The defendant in effect says that it believed that the plaintiff was using the way under this agreement, and therefore it did not object to or interrupt the use. If this agreement was filed in the town clerk’s office, we think that this would be notice to the town of the agreement, and if the subsequent use was consistent with the agreement, we think that it would be presumed to be under the agreement, unless the defendant had notice or knowledge to the contrary. But if the town had no notice or knowledge of the agreement, then it may have used the way under a claim of right, while the defendant may have believed, and reasonably believed, that the town was using the way under its permission, and for this reason may have refrained from preventing or interrupting the use. It is said in Edson v. Munsell, 10 Allen, 557, 568: “ In order to require the jury to presume a grant, the possession or use must have all the qualities of a prescription; it must be open, adverse, uninterrupted, and with the acquiescence of the owner. Any fact which directly affects the probability of such acquiescence must be submitted to the jury to assist them in determining whether such a presumption should or should not be made.”

In Smith v. Miller, 11 Gray, 145, the plaintiff bought his land from one Phelps, in 1832, and the defendant, whose land was on the opposite side of the highway, claimed title to his land under one Smith, who owned it from 1828 to 1835. Smith, in 1829 or 1830, obtained permission from Phelps to dig a drain from the land of Phelps across the highway and through his own land. The action was for obstructing this drain, and the plaintiff contended that, whether the use of the drain by Phelps was permissive or not, yet if the plaintiff when he bought the land in 1832 found a drain there, and continued to use it for twenty years, such use would give him a prescriptive right. It does not appear in the case whether the plaintiff knew that the drain was originally constructed for the benefit of Smith and by the permission of Phelps. The court said, that if Smith constructed the drain, for his own benefit, with the consent of Phelps, who was then the owner of the plaintiff’s land, “ the flowing of the water through it and over the defendant’s land must be considered to have been afterwards permissive and in accordance with the original agreement of the parties, until the plaintiff asserted some claim or exercised some right indicating that he made or intended to assert a claim adverse to the right of the defendant or of his predecessors.”

In the present case, we are of opinion, that, if the defendant silently submitted to the plaintiff’s use of the way, under a belief that this use was permissive and in pursuance of the agreement made with the plaintiff’s agents, this fact is material upon the question of acquiescence, and that the fourth request should have been granted, with the provisos that the use of the way by the plaintiff was not inconsistent with the agreement, that the defendant believed that the plaintiff was using the way in pursuance of the agreement, and that this was a reasonable belief under all the circumstances shown. The request in the form iii which it was made is not accurate and complete, particularly if the town was not shown to have had knowledge or notice of the agreement, and it should have been modified substantially as we have suggested; yet the instructions given on this point were not all that the case required, and might have misled the jury, and for this reason we are of opinion that there ought to be a new trial. Blake v. Everett, 1 Allen, 248. Carbrey v. Willis, 7 Allen, 364. Hannefin v. Blake, 102 Mass. 297. Rotch's Wharf Co. v. Judd, 108 Mass. 224. Elwell v. Hinckley, 138 Mass. 225. Dodge v. Stacy, 39 Vt. 558, 568. Root v. Commonwealth, 98 Penn. St. 170. Thompson v. Pioche, 44 Cal. 508.

The fifth request was rightly refused; if the plaintiff had a right of way, the defendant showed no right to fill up the way by an embankment.

The plaintiff in its declaration described a way leading from a highway across its own land and the land of the defendant to a burial ground. The sixth request, as we understand it, asked the court to rule that the plaintiff must prove a right of way as laid in the declaration from the highway to the burial ground, and that the plaintiff could not recover if it proved a right of way for only a part of this distance. If this is the law, (see 1 Greenl. Ev. §§ 71, 72,) still we think that, from the charge of the presiding justice, the jury must have understood that the plaintiff, to prevail, must prove a right of way throughout the whole distance as claimed in the declaration.

Exceptions sustained.