Braley, J.
The respondents concede that the fee in the land is owned by the petitioner, but contend that it is subject to an easement of way, which has become appurtenant to their several estates by prescription. To support their contention under the issue framed to try the question, they were required to show by a fair preponderance of the evidence that, with the acquiescence of the petitioner or its predecessor in title, the use of the land as a passageway to and from Market Street to Carpet Lane on which the rear of their estates abutted, had been open, uninterrupted and adverse for a period at least of twenty years. Lipsky v. Heller, 199 Mass. 310, 317. Barnes v. Haynes, 13 Gray, 188. Blake v. Everett, 1 Allen, 248. Claflin v. Boston & Albany Railroad, 157 Mass. 489. R. L. c. 130, § 2. But while unquestioned at the trial, that for more than the required period the way had been used openly and continuously, the petitioner asserted that in its origin the use was permissive, and that the evidence [548]*548of the respondents was insufficient to warrant a finding that the easement had been established.
It is undoubtedly true, that an adverse right cannot be gained from permissive enjoyment, or mere accommodation, but generally in an action to establish a right of way by prescription, the question whether the use was under a claim of right, or only permissive is for the jury. Putnam v. Bowker, 11 Cush. 542.
The judge of the Land Court, whose findings of fact are made prima facie evidence, by St. 1905, c. 288, determined as an inference of fact, that “ a free and unobstructed use of the strip in question as a way for teams and persons on foot has been acquired by prescription in favor of the respective respondents’ estates.” See St. 1910, c. 560, §§ 2, 8. If the jury on all the evidence found his report had been controlled, the probative effect conferred by the statute disappeared, but if unaffected the report was sufficient to support the respondents’ claim. Cohasset v. Moors, 204 Mass. 173.
Independently, however, of the report, there was evidence for the consideration of the jury that prescriptive rights had been acquired. By an agreement duly executed and recorded in 1841 the owners, under one of whom the petitioner derives title, dedicated the strip of land in question as a public street. Before the enactment of St. 1846, c. 203, it never became a public way, not having been accepted on the part of the city, and since the statute, it has not been legally laid out and established. Hayden v. Stone, 112 Mass. 346. Gen. Sts. c. 43, § 82. Pub. Sts. c. 49, § 94. R. L. c. 48, § 98. But from the time of dedication it had remained open, even if since 1859 it has been paved and kept in repair by the petitioner and its grantor and a sign with the words “ Private Way ” had been erected and maintained. If the original intention had been to restrict its use to their estates, and to their successors in title, if the city did not accept, the undisclosed purpose of the dedicators could not operate to prevent other persons from acquiring adverse rights. Fitchburg Railroad v. Page, 131 Mass. 391, 396. Ballard v. Demmon, 156 Mass. 449, 453. A right of way may exist over the same place in favor of different persons holding by diverse titles. If some of them enjoy it by grant or custom, this does not prevent others from acquiring a prescriptive right, even if the use may [549]*549be the same in character. Kent v. Waite, 10 Pick. 138, 142. Ballard v. Demmon, 156 Mass. 449. And the effect to be given to the act of putting up the sign, as indicative of a purpose to withdraw the dedication or to prevent the acquirement of such rights, was for the jury. During the entire prescriptive period, however, they could have been effectually barred by the statutory notice of an intention to prevent the acquisition of the easement. Rev. Sts. c. 60, § 28. Gen. Sts. c. 90, § 34. St. 1867, c. 302. Pub. Sts. c. 122, § 3, now R. L. c. 130, § 3.
But if the attempted dedication failed, the use of the way thereafter by the owners of the dominant estates could have been found by the jury to have been with the assent of the petitioner and its predecessor. The assent, if proved, was not permissive, in the sense of being an accommodation or license, but the continued use would be evidence of the exercise of an adverse right. Bassett v. Harwich, 180 Mass. 585, 586. Bolivar Manuf. Co. v. Neponset Manuf. Co. 16 Pick. 241, 246, 247. Stearns v. Janes, 12 Allen, 582, 584, and cases cited. As said by Holmes, C. J., in Bassett v. Harwich, 180 Mass. 585, 586, “ so if the evidence tended to prove an attempted dedication, although the dedication failed because of Pub. Sts. c. 49, § 94, it would tend to show that the use thereafter was under a repudiation by the owner of any right to stop it. It would help, not hinder, the proof of an adverse use.”
It also was unnecessary for the owners of these estates formally to assert or to give notice that they claimed the right to pass and repass, or that the petitioner or its predecessor should have been directly informed of their claim. Gray v. Cambridge, 189 Mass. 405, 418. The use was open, continuous and so persistent that the jury could find from these circumstances alone that they knew of it, or their acquiescence could be presumed even if actual knowledge may not be shown. Deerfield v. Connecticut River Railroad, 144 Mass. 325, 338. McCreary v. Boston & Maine Railroad, 153 Mass. 300, 305.
But there was direct evidence of actual knowledge. The statement of one Lyon, who died before the trial, that the passageway must be kept unobstructed for the use of the abutters on Carpet Lane was admissible. It was made by a person entrusted with superintendence of its mill property and while in [550]*550the management of the petitioner’s business, and, from the evidence of the witness who testified to the declaration, it appears to have been within the scope of his employment. Parker v. Boston & Hingham Steamboat Co. 109 Mass. 449, 451, 452. Bachant v. Boston & Maine Railroad, 187 Mass. 392, 396. Garfield & Proctor Coal Co. v. Pennsylvania Coal & Coke Co. 199 Mass. 22, 42. R. L. c. 175, § 66.
The refusal to give the first four requests, and the ninth, eleventh and twelfth requests was right, and the fifth, sixth, seventh, tenth, thirteenth, fourteenth, fifteenth and sixteenth requests, so far as applicable, were fully covered by the instructions.
It is argued that the eighth and seventeenth requests should have been iven, and that the instructions to which the petitioner excepted are inconsistent with the requests. The basis of the objection is, that if the way was used as a street in common with the general public, no prescriptive right ever attached. The main entrance to the mill property with the company’s office fronted on the southerly end of the way, where it turned into the lane, and according to all the evidence the use was substantially confined to its employees and tenants and persons having occasion to transact business at the office, and to the owners of the several estates of the respondents and those who dealt with them.
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Braley, J.
The respondents concede that the fee in the land is owned by the petitioner, but contend that it is subject to an easement of way, which has become appurtenant to their several estates by prescription. To support their contention under the issue framed to try the question, they were required to show by a fair preponderance of the evidence that, with the acquiescence of the petitioner or its predecessor in title, the use of the land as a passageway to and from Market Street to Carpet Lane on which the rear of their estates abutted, had been open, uninterrupted and adverse for a period at least of twenty years. Lipsky v. Heller, 199 Mass. 310, 317. Barnes v. Haynes, 13 Gray, 188. Blake v. Everett, 1 Allen, 248. Claflin v. Boston & Albany Railroad, 157 Mass. 489. R. L. c. 130, § 2. But while unquestioned at the trial, that for more than the required period the way had been used openly and continuously, the petitioner asserted that in its origin the use was permissive, and that the evidence [548]*548of the respondents was insufficient to warrant a finding that the easement had been established.
It is undoubtedly true, that an adverse right cannot be gained from permissive enjoyment, or mere accommodation, but generally in an action to establish a right of way by prescription, the question whether the use was under a claim of right, or only permissive is for the jury. Putnam v. Bowker, 11 Cush. 542.
The judge of the Land Court, whose findings of fact are made prima facie evidence, by St. 1905, c. 288, determined as an inference of fact, that “ a free and unobstructed use of the strip in question as a way for teams and persons on foot has been acquired by prescription in favor of the respective respondents’ estates.” See St. 1910, c. 560, §§ 2, 8. If the jury on all the evidence found his report had been controlled, the probative effect conferred by the statute disappeared, but if unaffected the report was sufficient to support the respondents’ claim. Cohasset v. Moors, 204 Mass. 173.
Independently, however, of the report, there was evidence for the consideration of the jury that prescriptive rights had been acquired. By an agreement duly executed and recorded in 1841 the owners, under one of whom the petitioner derives title, dedicated the strip of land in question as a public street. Before the enactment of St. 1846, c. 203, it never became a public way, not having been accepted on the part of the city, and since the statute, it has not been legally laid out and established. Hayden v. Stone, 112 Mass. 346. Gen. Sts. c. 43, § 82. Pub. Sts. c. 49, § 94. R. L. c. 48, § 98. But from the time of dedication it had remained open, even if since 1859 it has been paved and kept in repair by the petitioner and its grantor and a sign with the words “ Private Way ” had been erected and maintained. If the original intention had been to restrict its use to their estates, and to their successors in title, if the city did not accept, the undisclosed purpose of the dedicators could not operate to prevent other persons from acquiring adverse rights. Fitchburg Railroad v. Page, 131 Mass. 391, 396. Ballard v. Demmon, 156 Mass. 449, 453. A right of way may exist over the same place in favor of different persons holding by diverse titles. If some of them enjoy it by grant or custom, this does not prevent others from acquiring a prescriptive right, even if the use may [549]*549be the same in character. Kent v. Waite, 10 Pick. 138, 142. Ballard v. Demmon, 156 Mass. 449. And the effect to be given to the act of putting up the sign, as indicative of a purpose to withdraw the dedication or to prevent the acquirement of such rights, was for the jury. During the entire prescriptive period, however, they could have been effectually barred by the statutory notice of an intention to prevent the acquisition of the easement. Rev. Sts. c. 60, § 28. Gen. Sts. c. 90, § 34. St. 1867, c. 302. Pub. Sts. c. 122, § 3, now R. L. c. 130, § 3.
But if the attempted dedication failed, the use of the way thereafter by the owners of the dominant estates could have been found by the jury to have been with the assent of the petitioner and its predecessor. The assent, if proved, was not permissive, in the sense of being an accommodation or license, but the continued use would be evidence of the exercise of an adverse right. Bassett v. Harwich, 180 Mass. 585, 586. Bolivar Manuf. Co. v. Neponset Manuf. Co. 16 Pick. 241, 246, 247. Stearns v. Janes, 12 Allen, 582, 584, and cases cited. As said by Holmes, C. J., in Bassett v. Harwich, 180 Mass. 585, 586, “ so if the evidence tended to prove an attempted dedication, although the dedication failed because of Pub. Sts. c. 49, § 94, it would tend to show that the use thereafter was under a repudiation by the owner of any right to stop it. It would help, not hinder, the proof of an adverse use.”
It also was unnecessary for the owners of these estates formally to assert or to give notice that they claimed the right to pass and repass, or that the petitioner or its predecessor should have been directly informed of their claim. Gray v. Cambridge, 189 Mass. 405, 418. The use was open, continuous and so persistent that the jury could find from these circumstances alone that they knew of it, or their acquiescence could be presumed even if actual knowledge may not be shown. Deerfield v. Connecticut River Railroad, 144 Mass. 325, 338. McCreary v. Boston & Maine Railroad, 153 Mass. 300, 305.
But there was direct evidence of actual knowledge. The statement of one Lyon, who died before the trial, that the passageway must be kept unobstructed for the use of the abutters on Carpet Lane was admissible. It was made by a person entrusted with superintendence of its mill property and while in [550]*550the management of the petitioner’s business, and, from the evidence of the witness who testified to the declaration, it appears to have been within the scope of his employment. Parker v. Boston & Hingham Steamboat Co. 109 Mass. 449, 451, 452. Bachant v. Boston & Maine Railroad, 187 Mass. 392, 396. Garfield & Proctor Coal Co. v. Pennsylvania Coal & Coke Co. 199 Mass. 22, 42. R. L. c. 175, § 66.
The refusal to give the first four requests, and the ninth, eleventh and twelfth requests was right, and the fifth, sixth, seventh, tenth, thirteenth, fourteenth, fifteenth and sixteenth requests, so far as applicable, were fully covered by the instructions.
It is argued that the eighth and seventeenth requests should have been iven, and that the instructions to which the petitioner excepted are inconsistent with the requests. The basis of the objection is, that if the way was used as a street in common with the general public, no prescriptive right ever attached. The main entrance to the mill property with the company’s office fronted on the southerly end of the way, where it turned into the lane, and according to all the evidence the use was substantially confined to its employees and tenants and persons having occasion to transact business at the office, and to the owners of the several estates of the respondents and those who dealt with them. The petitioner neither at the trial nor at the argument contended or admitted that a public way had been established by prescription, and the respondents therefore could not prescribe for a privilege common to the whole community. Thomas v. Marshfield, 13 Pick. 240, 249. But it contended that as the dedication failed, the way should be considered as appropriated and used for the exclusive use and accommodation of the corporation and of its employees and tenants. The evidence it offered was confined to this inquiry, while the respondents relied wholly upon the use of the way as connected with their estates. It cannot, in order to defeat them, resort to a defense it did not care to make and which if successful would destroy its alleged right to the registration of an unincumbered estate. If the entire charge is read in connection with the evidence, and with the respective positions of the parties in mind, the instructions clearly stated, that if the use was permissive, it could not [551]*551ripen into an easement, and the burden was on the respondents to prove that it was adverse. Whatever the mode of travel may have been, the jury must have understood, that unless they were convinced that the use of the way by the owners was in connection with the respondent estates and not merely as travellers or members of the general public an easement had not been acquired.
The remaining exceptions to the instructions are covered by what has been said and need not be further considered.
But if there was no error in the admission of evidence or in the rulings and instructions, the ruling that as the respondents had the burden of proof they had the right to the opening and close, requires us to sustain the exceptions. The petitioner asks to have registered a title in fee, and it is the moving party. If an issue for a jury is framed, that is only an incident of the proceedings, and the transfer of the issue to the Superior Court for trial does not remove the case, which still remains in the Land Court for final disposition, after the answer of the jury has been certified. Weeks v. Brooks, 205 Mass. 458. It long has been settled in actions at law, and under issues framed for a jury in equity and in probate appeals where a will is offered for proof, that the plaintiff, or the executor, has the right to open and close before the jury, irrespective of the form of the pleadings, or whether, from the nature of the defense or of an affirmative claim or issue, the burden has shifted to the adversary party. Dorr v. Tremont National Bank, 128 Mass. 349, 358-360. The practice should be uniform, and there is no reason why the case at bar should be taken out of this general and salutary rule.
Exceptions sustained.