Reed v. Mayo

108 N.E. 366, 220 Mass. 565, 1915 Mass. LEXIS 757

Opinion

De Courcy, J.

A portion of the easterly line of the petitioner’s tract is described as bounded "by the western end of a town highway leading to Weston Road.” The judge of the Land Court, on the facts found by him, ruled that the way referred to (known as Mayo Road) was a town road, and ordered a decree accordingly.

This way had its beginning more than sixty years ago, when it appears that one James Roy, the respondent’s predecessor in title, agreed to give the land therefor, to fence it and to make the road to the acceptance of the selectmen, for $150. Certain proceedings on the subject of laying out the way in question took place at town meetings held in April and May, 1852. Since that time, according to the findings of the Land Court, Mayo Road has been used by the public, and the town has made repairs continuously and has done other work on the road, under a claim by its officers that this was a public way. Further, throughout the respondent’s own chain of title, including the immediate deed to her and mortgages given by her, it has been mentioned as a town road running through her land. On these facts, unaided by the effect of the town meeting records, we should be inclined to say that the Land Court was warranted in finding that this ancient way was a town way. The admissions of the respondent and of her predecessor in title tend to prove the existence of such a way. Osgood v. Coates, 1 Allen, 77. Blake v. Everett, 1 Allen, 248. Simpson v. Dix, 131 Mass. 179. See Driscoll v. Smith, 184 Mass. 221. The making of repairs by the town is evidence of the existence of a way located and appropriated to the public use. Commonwealth v. Holliston, 107 Mass. 232. Commonwealth v. Matthews, 122 Mass. 60. And it well may be that the uninterrupted adverse use of Mayo Road since 1852 was enough to establish a way by prescription. Bassett v. Harwich, 180 Mass. 585.

The town records show that the warrant for a town meeting to be held on April 5, 1852, contained an article "to see if the town will discontinue apart of the old road leading from the Parker place to the Methodist Meeting House in West Needham. Also to lay out a new road about forty-seven rods long running northeasterly from land of Ephraim Loker and James Roy to the new road on Pine Plain, so called, agreeably to the petition of James Roy and others.” At the town meeting it was voted to refer this article to the selectmen. At a town meeting held on May 3,1852, and apparently under the article

Footnotes

•

* in the warrant referring to “the report of any committees,” the selectmen made a report,* recommending the discontinuance of the old road and the laying out of the road in question; and the town voted to accept it. The article in the warrant for the May meeting did not explicitly state that the report of the selectmen respecting the location of a new road was to be acted upon. See Rev. Sts. c. 15, § 21, then in force. But it is evident that the subject of laying out Mayo Road was carried over from the April to the May meeting, and that the report of the selectmen was regarded as the report of a “ committee,” within the meaning of the May warrant. Alden v. Rounseville, 7 Met. 218. Fuller v. Groton, 11 Gray, 340. Geer v. Fleming, 110 Mass. 39. It is urged that so far as the record shows, the laying out, with the boundaries and measurements of the way, had not been filed in the office of the town clerk seven days before the meeting, as then required by Rev. Sts. c. 24, § 69. It does not necessarily follow, however, that the provisions of the statute were not complied with. The main purpose of giving seven days’ notice of the intention to lay out the way was to inform the landowner as to what portion of his land was to be taken. See Jeffries v. Swampscott, 105 Mass. 535. In this instance the only owner interested was James Roy, who had petitioned the town to lay out Mayo Road and had given the land needed for that purpose. Even though evidence of notice and filing does not appear .in the town records, it may be presumed or inferred after sixty years that the statutory requirement was complied with. All reasonable presumptions are to be taken in favor of such ancient records.

In view of all the facts, — the records, the construction of the road and its long user, the occasional repairs, and other circumstances tending to show that Mayo Road originally was laid out as a town way, — we cannot say that the judge of the Land Court was wrong in finding that it is an ancient public way. Commonwealth v. Belding, 13 Met. 10. Avery v. Stewart, 1 Cush. 496. Holyoke v. Hadley Co. 174 Mass. 424. And see Harrington v. Harrington, 1 Met. 404.

In accordance with the report a decree is to be entered for the petitioner.

Ordered accordingly.

This article read: “To hear the report of any committees that may be ready to do the same.”

•

In this report it was stated that “said Eoy [who had petitioned for the laying out] agrees to give the land and fence it and make the road .to the acceptance of the selectmen for $150.”