Rotch's Wharf Co. v. Judd

Chapman, C. J.

The first four exceptions relate to the questions put to William J. Rotch, a witness for the plaintiffs,- and his answers. To understand them properly, it is necessary to advert to the points to which they relate, and the situation of the witness. The defendant claimed a right of way over the wharf to a warehouse which he occupied under a lease from Benjamin Rod* man, and contended that Rodman had acquired the right by adverse user. The wharf was open and uninclosed, and used as a public wharf. The witness was a nephew of Rodman, had known the locus since 1845, and for ten or fifteen years had been president of the plaintiff company, and had had his counting-home during all that time where he could constantly see the locus.

The first question was, whether he was ever aware of any adverse claim of a right of way by Rodman or his tenants over the wharf, and he answered in the negative. We can see no objection to his making this negative as broad as possible. If it had been limited to the time of his presidency, it might have been said, with some force, that he knew it at a prior time, as he was a relative of the defendant and familiar with the premises. It was the right of the plaintiffs to prove that he never had knowledge of it, and the value of this testimony would depend upon his means of knowledge.

The second question was, whether there had been a permissive use of the wharf to Rodman and his tenants and all other persons, while he had been an officer of the corporation; to which he answered, “ Yes, so far as I know.” This is objected to as leading; but it is not subject to exception on that ground. York v. Pease, 2 Gray, 282. It was pertinent and material; and if the defendant’s counsel thought it was more broad than the knowledge of the witness would warrant, they could have ascertained it by cross-examination.

The third and fourth related to the effect of such use upon the wharf, and the reasons of the witness for his assertion. It was pertinent as showing the character of the use; and if the use did no damage, the jury would be less likely to consider it adverse than if it caused considerable damage ; for a neighbor would be more likely to grant a favor that did him no injury, or to take a liberty that injured no one, than if the act were injurious.

The last exception relates to the admission in evidence of the deed of the wharf property to the plaintiffs. The plaintiffs’ charter was March 15, 1831. The organization was September 3, 1831. The deed was dated August 20, 1831; and the registry was March 13, 1832. The plaintiffs’ occupation has been according to the deed, during the whole period covered by the evidence. The proof of the deed was not material as against the defendant, the prior possession of the plaintiffs being a sufficient title. Barnstable v. Thacher, 3 Met. 239. The acceptance of the deed will be presumed as soon as the plaintiffs were competent to take it. Concord Bank v. Bellis, 10 Cush. 276. Ward v. Lewis, 4 Pick. 518. Bank of United States v. Dandridge, 12 Wheat. 64, 70. And these plaintiffs could accept a deed as soon as they became competent to make a contract under their charter. This was at an earlier period than the commencement of the defendant’s use of the way. We think the deed was properly admitted in evidence.

Exceptions overruled.