Middlesex Co. v. Lane

21 N.E. 228, 149 Mass. 101, 1889 Mass. LEXIS 126

• Court: Massachusetts Supreme Judicial Court
• Decided: May 6, 1889
• Status: Published

Opinion

Holmes, J.

This is a bill brought to restrain the defendants from filling the plaintiff’s mill-pond, and to compel them to remove earth by which a portion of the pond has been filled in. The master finds that the defendants own one lot of the land in question, styled lot A, and that they and their predecessors in title for more than twenty years before the filing of the bill in this case had the visible, notorious, distinct, and absolute adverse possession of another lot, styled lot B, which previously belonged to the plaintiff. This imports that the plaintiff was excluded from the premises, and no declaration of abandonment on its part was necessary in order to bar its title. The characteristic case of title by adverse possession is when it is acquired without the consent and against the will of the former owner. The evidence on which the master found as he did is not before us, so that much of the plaintiff’s argument is beside the'mark. If the land had belonged to the defendants before the filling, and they had built a dam excluding the plaintiff’s water, the plaintiff’s right of action (if it would have had one, Storm v. Manchaug Co. 13 Allen, 10, Isele v. Arlington Five Cents Savings Bank, 135 Mass. 142) would have been barred in twenty years, as in other cases of an interrupted easement. Smith v. Langewald, 140 Mass. 205, 207. In the present case the land had belonged to the plaintiff, the plaintiff was excluded from the land and from the exercise of the right of flowage incident to its title at the same time, and lost all rights together.

Bill dismissed.