Holbrook v. McBride

70 Mass. 215

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1855
• Status: Published

Opinion

Merrick, J.

*

1. We see no just cause of exception to the rejection of the evidence offered by the plaintiff, in reply, to show that the defendant did not remove the fence in the discharge of his duty as surveyor, but from malice and hostility to the plaintiff. The plaintiff knew from the answer what was to be the nature of the defence. He chose to attack, and, if he could, to disprove it, in advance of any evidence offered in relation to it by the defendant; and he was permitted to do so by the court. No restraint whatever appears to have been put upon him in this course of proceeding. This justly precluded him from the right, without the permission of the court, of introducing, in reply, and at the close of the trial, merely cumulative evidence to the same point. York v. Pease, 2 Gray, 282. The order in which witnesses shall be called and evidence given is often within the discretion of the court. Cushing v. Billings, 2 Cush. 158. When it is so, the ruling is not open to revision. In the present instance that discretion appears to have been properly and judiciously exercised.

2. As the limits of the road referred to in the declaration, as a part of the description of the plaintiff’s close, were not known, and could not be made certain by reference to the record of its location, nor by any actually existing monuments, the fence which had stood fronting upon and against it for more than twenty years was properly regarded as its true and legal boundary. Rev. Sts. c. 24, § 61. This is not doubted by either of the parties. But it having been shown at the trial that the original structure was a Virginia fence, a question arose as to the precise point or place of division between the highway and the plaintiff’s close. The presiding judge instructed the jury to consider the centre of its rails as the line of the fence, and this line as the boundary of the road. They were also further advised, in broader terms, that, when land bounds on a highway, the owner has the same right as against the public, to set one half of his fence within its limits, that he would have to place one half of a division fence upon the land of an adjoining proprietor. The latter ruling, we think, is very obviously incorrect, The cases are widely different. Adjoining proprietors are under equal obligations, expressly imposed upon them by law, to keep up and xnaintain suitable partition fences between their respective estates; and they are to bear in equal proportions the expenses necessarily incurred in performance of the duty required. And from this mutual obligation and responsibility is deduced the legal authority and right of each of the parties to occupy, for the purpose of building and maintaining a fence, the land of the other, to the extent of one half the width of the necessary structure. Rev. Sts. c. 19, § 2. Newell v. Hill, 2 Met. 180

But, as between the public and the owner of land abutting upon a highway, no such mutual duty or obligation exists, and therefore there can be no corresponding right or privilege. Stackpole v. Healy, 16 Mass. 33. Whenever land is taken under authority of law, and appropriated to public use for a common highway, the owner, being entitled to a full indemnity, may claim remuneration for all expenses necessarily incurred, as a part of the damage which he has sustained, or which has been caused to his estate. Rev. Sts. c. 24, § 11. If the cost of erecting, or of afterwards maintaining a fence, is the necessary, natural or probable consequence incident to the taking of the land for a highway, it is a charge fit to be considered, and to a reasonable amount allowed, by the commissioners or municipal authority by which it is established, or by the jury by whom their doings may be revised.' First Parish in North Bridgewater v. County of Plymouth, 8 Cush. 475. And on the other hand, the easement acquired by the public by the due and legal location of a common highway is coextensive with the exterior limits by which it is bounded and described; and any encroachment upon any part of the land within those limits, by a deposit of materials intended to be left permanently there, is a violation of the public right, which maybe prosecuted and punished as a nuisance. Commonwealth v. King, 13 Met. 115.

The verdict of the jury does not, however, depend upon maintaining this proposition. It was well warranted and indeed required by the simple and exact rule prescribed by the court, that the centre line of the rails of the Virginia fence was to be considered the line of that, and the boundary of the road. And confining the rule to the state of facts shown upon the trial, and to this peculiar species of fence, we think this instruction to the jury was in substantial conformity to the meaning and intent of the statute. A Virginia fence was probably never anywhere thought to follow the precise line of division between conterminous proprietors; but only, by continually crossing and recrossing it, to indicate with reasonable certainty its ti-ue locality. Between private proprietors, therefore, there would be no difficulty in adopting the centre of the rails as their dividing line. And considering the customs and usages of the country, and the extreme improbability that a highway would have eve; been located with such exterior limits as would be caused by the zigzag course of a Virginia fence, it would be an unreasonable perversion of the provisions of the statute, not to apply the same rule in ascertaining and determining the extent of the public easement and the rights of the owner of the adjoining land.

3. The jury were properly instructed that the burden of proof was, throughout the whole case, upon the plaintiff. It was only stating to them a part of the same proposition in detail, when they were further told that they ought to return a verdict for the defendant, if they were not satisfied that the act complained of as a trespass was committed within the close described in the writ, or if they doubted whether it was within the limits of the highway. Certainly, if they had doubts as to the place where the act was done, they could not be certain or reasonably satisfied that it was done upon the land of the plaintiff, without proof of which he was clearly not entitled to recover.

4. We see no objection to the suggestion of the court that the term “road,” as used in the declaration, should, under the circumstances of this case, be considered as equivalent to “ highway.” There was in fact a highway there, laid out by public authority in substantially the same place, and along the same general line in which the travelled way or road, mentioned by the plaintiff, extended. The former is the generic term, which necessarily embraced the latter; and the road, therefore, could not be in width less than commensurate with the highway.

Exceptions overruled.

This case and the three next following were argued at October term 1854, and decided at Boston in June 1855.