Plumer v. Brown

Shaw, C. J.

The question in this case depends so much upon a precise knowledge of the localities, that it is difficult to understand it without a plan. As we understand the case, the wood was lying on a place apparently within the limits of the highway, and the defendant, as a surveyor, removed it as a nuisance. But there was no record, indicating the exact limits of the highway ; and as the adjoining land belonged to Enoch Plumer, and as it was apparent that the land was either within the highway, or the soil was that of Enoch Plumer, the defendant justified, not only as a surveyor of highways, but also under the license and request of said Plumer. It was therefore, prima facie, either a public or private nuisance, in either of which cases the defendant was justified, unless the plaintiff had acquired an easement for placing his wood there or a possessory title by grant or prescription. The defendant offered evidence of the title of Enoch Plumer, by descent from John Thurston, as one of his heirs, and an authority and request from him to remove the wood. To rebut this title and show an easement or possessory title in himself, the plaintiff offered evidence that John Thurston, in his life time, entered into a parol contract with Benjamin Thurston, in 1811, to sell the land to him, and received his pay; but that no deed was executed. Benjamin Thurston used the land, for placing wood, carts, &c. till 1816. He then sold to the plaintiff his farm, situated near and on the opposite side ■ of the highway, by a deed not embracing the premises, but with the usual clause of privileges and appurtenances. The plaintiff continued to occupy his farm, and made the same use of the premises (being a strip of land on the side of the road) which Benjamin Thurston had made, until within five or six years before the bringing of this action. The judge instructed the jury, in effect, that the plaintiff must show 20 years’ uninterrupted possession, to make out a possessory title, and that he could not connect Benjamin Thurston’s possession with his own, to make out the 20 years; that if he himself, from 1816, when he purchased, had had adverse and uninter rupted possession 20 years, it was sufficient to .establish his right of possession, and rebut the claim of the defendant to justify under Enoch Plumer.

The court are of opinion that this instruction was right. The most which Benjamin Thurston could acquire, by his parol purchase, was a tenancy at will; and this was not assignable. Nor did he, by his deed, profess to transfer it to the plain tiff It was not long enough to create an easement which would pass as appurtenant to the farm.

On the ground that the land was in the highway, it appears that in 1811 a question was made, whether the wall at the place was not an encroachment on the highway; that the selectmen of Newbury viewed it, in the presence of the plaintiff’s predecessors and himself, and ordered the wall to be placed back, where it now is, which was soon after done, and it has remained so ever since. The judge instructed the jury, that this case was within the Rev. Sts. c. 24, § 61, which provide that where fences have been erected, and continued for more than 20 years, against any highway, and from length of time, or otherwise, the boundaries thereof (that is, of the highway) are not known, such fences shall be deemed and taken to be the true boundaries thereof

The court are of opinion, that this statute provision was applicable to the present case. It was a fence which had been standing more than 20 years, and so, by force of the statute rule, established the line of the highway, and showed that the place where the plaintiff’s wood was lying was within it. It tended to establish the defendant’s justification, unless he could show an adverse right, as against the public, to use the soil of the highway.

The plaintiff requested the judge to instruct the jury, that although the defendant was justified in removing the wood, yet his subsequent notice to the plaintiff, by which he informed him where the wood was, and that he could have it, paying the defendant for removing it, was a conversion.

We are far from intending to intimate that a public officer, removing a nuisance, may not charge the party who created it, with the reasonable cost of its removal. The Rev. Sts. c. 24, § 63, provide that when any fence or other incumbrance, erected or continued on any town way or highway, shall be adjudged a nuisance, and ordered to be abated, the materials of such incumbrance may be sold to pay the costs and charges of prosecution ; and, if insufficient, the party convicted of erecting or continuing it shall be chargeable for the balance. But, without giving any opinion on this point, it is sufficient for this case to say, that even a demand and refusal are only evidence of conversion; that here is no demand and no refusal; and that the case was left to the jury with right instructions on this point.

Exceptions overruled.