Taylor v. Boston Water Power Co.

As the plaintiff has alleged in his declaration that he was injured when he was passing over “ a public road or highway,” it is necessary to the maintenance of his action that he should prove that allegation; and the main question in the case is, whether the evidence at the trial was sufficient to warrant the jury in finding that it was such a road or highway.

It is not denied by the defendants that the place where the plaintiff was injured was an open passage way tor travellers, *418And there was testimony that the Boston and Roxbury Mill Corporation built this passage way, more than thirty years before the time of the trial, and ever afterwards kept it in repair; that it had been a road open to the public, and frequently travelled; and that it was sometimes travelled by persons passing, as the plaintiff was, from Roxbury to Brookline. This testimony was sufficient, if believed by the jury, to prove that the passage way was a public road or .highway; inasmuch as it showed that there had been an actual public use of it, general, uninterrupted and continued for twenty years and more, and that it had been so accepted, adopted and confirmed, by general use by all travellers, as to make it a public way by prescription, according to the laws that were in force before the St. of 1846, c. 203, went into operation. Jennings v. Tisbury, 5 Gray, 74. We infer from the testimony that the passage way had been in general public use by travellers for twenty years before that statute took effect; that is, before June 1846. This is not shown explicitly by the testimony, as reported in the exceptions; but the defendants have not denied it, although, if such was not the fact, the passage way was not a public way within the meaning of that statute. 5 Gray, sup.

The first instruction to the jury must be understood to apply to the evidence which had been presented to them, and to mean that if the road had been built, thrown open to the public and used as a road by any one who desired to make such use of it, for the length of time which the testimony showed, then the defendants were answerable in this action. The second instruction was right, and the defendants have not questioned its correctness.

It is objected by the defendants, that the judge left to the jury the construction of the charter of the Boston and Roxbury Mill Corporation, by stating to them that if the road was built by that corporation, “ under and by virtue of their charter,” &c., then the defendants were liable for the injury to the plaintiff. But it is wholly immaterial whether their charter gave them authority to build the road, or whether they built it in the belief that their charter gave them such authority. If the *419jury found their verdict on the ground that the (corporation built the road under and by virtue of their charter, and mistook the law in this particular, yet their verdict must stand, because the defendants are liable, though the corporation did not build the road under and by virtue of their charter. That part of the instructions, if wrong, was so because it might have led the jury to return a verdict for the defendants on a ground which would not have entitled them to a verdict. They, therefore, have no legal reason for excepting to that part of the instruction.

The St. of 1846, c. 203, altered the law only as to the liability of" towns and cities to keep in repair and to be answerable for the defects in ways not laid out and established in the manner prescribed by other statutes. It did not affect the liability of other corporations or of individuals, for obstructions by them placed in travelled ways. We therefore need not express an opinion whether the passage way in question might be deemed a public road or highway,” as against these defendants, even if it had not become a public way within the meaning of that statute.

The law is clear, as stated by Vaughan, C. J. in Thomas v. Sorrell, Vaugh. 341, that “if by any public nuisance a man have a particular damage, he may have his action on the case against the nuisance-maker.” See also Angelí on Highways, § 285. These defendants were the makers of the nuisance by which the plaintiff had a particular damage.

Exceptions overruled.