Commonwealth v. Inhabitants of Newbury
Commonwealth v. Inhabitants of Newbury
Opinion of the Court
It seems not to be necessary, in an indictment for not repairing a highway, to set out the termini a quo and ad quern of the way, though it is certainly better to be thus particular, and is more consistent with the general course of criminal proceedings, which require certainty whenever it is attainable ; that it is not necessary, however, is laid down in 3 Chitty’s Cr. L. 570 ; Rouse v. Bardin, 1 H. Bl. 351. [See also Alban v. Brounsall, Yelv. (Metcalf’s ed.) note 1.] There is therefore no sufficient objection to the indictment.
But we think it has not been proved by the government, that there is such a way in legal existence, as is described in the indictment, viz. leading from Low street, near Tap-pan’s lane, to Turkey hill. It is described as a private way . for the use of the inhabitants of the town of Newbury. If there is any way at all there, it is rather a public than a private way, and should have been described as such. But no way is proved by record, nor is there any proof that the way has existed, or been used, as it now is, for any term of time which will establish it on the presumption of an ancient laying out or grant by the proprietors of the land. Paths across the pasture have undoubtedly been used for fifty or sixty years, probably much longer, but no fixed and determinate way is proved ; the witnesses on the part of the government testifying that, less than thirty years ago, the entrance from Low street has been changed by the proprietors of the land adjoining. There is nothing in the case from which it can be inferred that a town way was ever established here, except that it was sometimes called the town way in ancient times ; but by the records referred to it is called a highway, which, in common language, as well as in statutes, means a public way leading' from town to town or place to place, in contradistinction to private ways for the use of the
We are satisfied that there is no such way as is described in the indictment, and therefore that the defendants must be discharged. If the passage is wanted for the public, or by the inhabitants of Newbury as a private way, the respective authorities who have charge of the subject of ways will doubtless do what duty requires of them in this regard.
Rex v. Weonards, 6 Car. & Payne, 582. But if the termini are stated they must be proved, ibid.
Commonwealth v. Low. 3 Pick. 408. See also Todd v. Rome, 2 Greenl. 55, Estes v. Troy, 5 Greenl. 368; Rowell v. Montville, 4 Greenl. 470; Commonwealth v. Charlestown, 1 Pick. 188; Ward v. Folly, 2 Southard, 482; Galatian v. Gardner, 7 Johns. R. 106.
Commonwealth v. Lote, 3 Pick. 408.
See Wood v. Veal, 5 Barn. & Ald. 454; Jarvis v. Dean, 3 Bingh. 447
Dissenting Opinion
dissenting. It was testified in this case by Enoch Tappan, that he remembered this way 50 years, and that it was called the town way ; that it is fenced nearly on the line, on the south side ; and that it is much used by inhabitants of Newbury. Stephen Tappan swears that he has known this way for 60 years, and that his father used to say that the town owned it. Jacob Merrill testified that it had been used for 27 years according to the straight lines as far as the upper bridge. It is literally true, that for a time beyond the memory of man there has been a way from Low street to Turkey hill, through gates at each end of it. The eastern part was varied in its course 27 years ago, and has been used ever since according to the variation. Bridges have been built over this way, and the town has repaired it, from time to time, for more than 60 years. It is true that it was sometimes called a drift way. It has also been used by persons who were not inhabitants of Newbury. This would have been the case if it had been laid out as a private way for the town according to the statute. It happens in all town ways ; and this circumstance is to be taken into consideration in weighing the evidence.
I am aware that the act of repairing does not prove conclusively whether it was a town way or a highway. It is however good evidence to prove that it was either one or the other ; and if it be either, the defendants are bound to repair
But I cannot but think, that what the ancient witnesses testify that their fathers declared in their day upon this matter, is of the greatest weight. They called it the town way, when speaking concerning it. They said the town owned it. If it had been a public highway, that language would not have been used. That evidence is much stronger, than the fact so much relied upon in the argument, that a clerk of the proprietors should, in their records, have described an estate bounding upon this place, as bounding on a highway ; for in the latter case the way is but an incidental matter, in the former it is the principal subject. Those old people were speaking of the rights of the town in the way.
If, however, it be true, as is intimated by the learned Chief Justice, in giving the opinion of the Court, that towns cannot acquire a right of way except in the mode provided by the statute, then the judgment should be for the defendants ; because there is no record produced, that it was ever in fact laid out according to the statutes of the commonwealth. If it ever was, the record probably has been lost.
But I am of opinion, that the inhabitants of a town may prescribe for a way, as well as individuals, or as the inhabitants of the commonwealth may. The modes of laying out private ways and highways by the statute, were cumulative provisions ; leaving the common law touching ways by prescription unaltered.
In 17 Vin. Abr. 256, Prescription, A, in notis, it is laid down, that prescription may be, that the usage of the vill of D. has been time out of mind, that the inhabitants &c. have had a way over the land of the plaintiff to the church &c. ; and that inhabitants may prescribe for an easement; contra in
In Spear v. Bicknell, 5 Mass. R. 130, the allegation was, that the inhabitants of Quincy were seised of a close, which was part of a highway, and that they, “ and all those whose estate they have in the close, have immemorially, for themselves, their tenants and occupiers, kept up and maintained upon the same highway a gate, at all such seasons of the vear as the same should be found necessary for the preservation of the said close, and of the grass and emblements, to be shut by all persons who should open and pass through the same.” Parsons C. J. says, “ This prescription may he good in law, for it might have a lawful commencement.”
This Court, in the case of Hill v. Crosby, in Middlesex, [vide post 466] lately had occasion to consider and fully to adopt the modern doctrine, that a right of way may be acquired by usage for 20 years under a claim of right unexplained. That was in the case of an individual; but I do not perceive any difference, in principle, whether the claim is by an individual or by a town. It only requires more evidence in the latter case than in the former, or it may be more difficult for a town to establish the right, than it would be for an individual; but the right, when once established, is to be maintained and exercised alike by both.
Individuals are permitted to claim a right of way by prescription, over land belonging to the inhabitants of a town. That was decided in the case of The Inhabitants of the First Parish in Gloucester v. Beach, in Essex, not reported.
Now this usage or prescription is received as evidence of a grant, and if it be true that the inhabitants of a town could
By the statute last cited, any justice of the peace may remove gates and bars on any private way, unless erected by the leave of the town, or by the person for whose use and benefit the way was laid out. Now does it follow, because the record evidence cannot be produced that the town granted leave to the owners of the land to put up these gates, that therefore a justice of -the peace might remove them as nuisances ? I think not, and for the reason before suggested. The agreement which is to be presumed from the usage, was founded upon the right that the owners of the land might keep up gates. If that had not made a part of the contract, the owners would undoubtedly have had a claim to more damages for the grant of the right of way.
With the greatest respect for my learned brethren, I am obliged to give my opinion, that the defendants are not guilty in keeping up the gates in the manner they have done, but that they are guilty of the nuisance in not repairing the town way. But a majority of the Court having a different opinion, the judgment therefore is, that the defendants be discharged from this indictment, and that they go without day
See Pritchard v. Atkinson, 3 N. Hamp. R. 335.
The following is a note of the case here referred to.
The Inhabitants of the First Parish in Gloucester versus William Beach.
This was an action of trespass quare clausum, &c. The defendant pleaded a right of way, first, by prescription, and secondly by a non-existing grant by the plaintiffs to one Penhallow, under whom the defendant justified, as servant; the plaintiffs traversed the prescription and the grant.
The facts on the trial, before Putnam J., at the sittings after the October term 1821, in Essex, were in substance as follows: — The close over which the defendant claimed the right of way, had been occupied by the plaintiffs for more than sixty years as a site for their meetinghouse. It had never been fenced till within a year or two past; but those parts of it which were not actually covered by the meetinghouse, had remained open at each end
The plaintiffs contended, that it was by the indulgence of the parish, and not under an adverse claim of right, that the defendant and those under whom he justified, had used to pass over the close; and that question was left to the jury, with a direction by the judge, that if the passing had been continued uninterruptedly for more than twenty years, adversely, they might presume a grant; but if such usage had been by indulgence and at the will of the plaintiffs, then the verdict must be against the defendant. The jury returned a verdict for the defendant, and the plaintiffs moved for a new trial on the ground of a misdirection; contending that no such presumption of the grant of a way ought to be made against the plaintiffs, or any corporation like theirs, under the facts in this case.
At the October term 1822, J. Pickering and Nash, in support of the motion for a new trial, contended that the modern English rule of presuming a grant of an easement, after a user of twenty years, was not applicable to the case of a corporation like the plaintiffs; and that there had not been any adjudication, as it was believed, in which that rule had been expressly adopted by our courts to the extent which would be necessary for the defendant’s case. That in this State we have a public registry of deeds, which precluded the necessity of such a presumption; and that the defendant ought not to have the benefit of it, unless he should first show, that the public records have been destroyed, or that he has examined them. If, however, the English rule was adopted here, then it was necessary to. consider the principles on which it rested, in order to determine how far it was
Saltonstall and Cummins, for the defendant, contended that the presumption of a grant might arise from the user, as well against a corporation of this kind, as an individual; that the rule of law was general, and in all cases it was a question to the jury, whether the use of a way or other easement was uninterrupted and unexplained; Griffith v. Mathews, 5 T. R. 296; Campbell v. Wilson, 3 East, 294; Holcroft v. Heel, 1 Bos. & Pul. 400; Jackson v. Stephens, 13 Johns. R. 495. The rule of law is modern, but is well settled and fully recognised here, that a grant may be presumed after twenty years, if unexplained; Gayetty v. Bethune, 14 Mass. R. 49. The argument from the provision of our law as to the registry of deeds, is as strong against the grant of an individual, as of corporations, who it was said could only act by a vote; corporations have no more right than individuals, and may be prescribed against. The property here too is more like private than public property, and the parish have so treated it by recently enclosing it; but even if public, the roles of law are the same ; a public body may as well dedicate property to public uses, as an individual. It is not analogous to the case of trustees; they cannot grant, but a parish may. If the question arising in this case was properly submitted to the jury, then a new trial ought not to be granted, unless the verdict is against evidence. Here there were many circumstances to strengthen the presumption of a grant [which the counsel stated in detail] and the use was clearly adverse and equivalent to a claim as of right. The use made by the defendant of the passage was peculiar and unlike that made by any other persons; it was the only passage to a barn which had been on the lot more than forty years. The verdict must be supported, unless in the 'opinion of the Court the presumption of a grant can never arise against a local corporation leaving land unenclosed for any length of time. There was no misdirection; the question put to the jury was, whether the way was by indulgence or under a claim of right.
At April term, 1823, a new trial was ordered.
Emerson v. Wiley, 7 Pick. 68.
Reference
- Full Case Name
- Commonwealth versus The Inhabitants of Newbury
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