Copp v. Foster

189 N.E.2d 521, 345 Mass. 777

• Court: Massachusetts Supreme Judicial Court
• Decided: March 28, 1963
• Status: Published

Opinion

Decree affirmed with costs to the defendant. This is an appeal by the plaintiffs from a final decree of the Superior Court in which it was adjudged that the defendant has the “right of way to pass and repass, on foot and by motor vehicles” over a portion of the plaintiffs’ land. The decree established limitations to the defendant’s use of the right of way and enjoined the plaintiffs from “interfering” with the defendant’s use thereof. In their brief the plaintiffs concede that a right of way over their land was created by deeds granted in the year 1900. They contend, however, that the right of way should be “two or three feet” narrower than the twelve feet allowed in the decree and that a small, triangular area of their land was erroneously included in the right of way. There was sufficient evidence to justify the judge’s findings as to the width of the right of way, to the length of time the disputed area was used, and that it had become part of the right of way by prescription, if not by grant. The original “right of way over the northwest comer” of the plaintiffs’ land was “to pass and repass at all times with teams.” There was no error in determining that the right of way should now be open to motor vehicles. Deacy v. Berberian, 344 Mass. 321, 327-328.