Ruggles v. Lesure

41 Mass. 187

Opinion

Morton J.

delivered the opinion of the Court. The Court of Common Pleas did right in rejecting the evidence offered. Had it been in itself competent evidence, the state of the pleadings would have excluded it. In trespass a license or easement must be pleaded, and cannot be given in evidence under the general issue. 1 Chitty on Pl. (5th ed.) 528, 544 ; Spear v. Bicknell, 5 Mass. R. 125 ; Strout v. Berry, 7 Mass. R. 385 : Waters v. Lilley, 4 Pick. 148.

But the agreement between the parties, if pleaded in any form, would have availed the defendant nothing. It was not a valid subsisting contract for any purpose. Individuals have no right to lay out, widen or straighten public streets or highways. Private interests would clash with public convenience. Competent tribunals have been established for the purpose of judging of the utility and necessity of such improvements ; and they alone have the power to make them. But if, as in England, private citizens might dedicate their land to public uses for roads, streets and other similar purposes, yet here was nothing which amounted to a dedication.

Footnotes

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* Whatever might have been the intention of the plaintiff in throwing out his land, and whatever effect time might have had upon it, most certainly when the trespass was committed, it had not ripened into a dedication. The public had done nothing by user, or otherwise, indicating their acceptance of the proffered dedication. And assuredly the public cannot acquire a right or a dedication be perfected, without some public use.

If the agreement imported a grant or conveyance to the de fendant, of a right of way or passage or any other easement on the land thrown into the highway, it was an interest in real . estate, which could not be conveyed by parol. St. 1783, c. 37.

The agreement, however, in our opinion, amounted to a license and nothing more. As such it was valid, but beyond this it could not operate. It gave the defendant authority to enter and perform certain acts upon the plaintiff’s land, and was a full justification of all that was done under it. But licenses are personal and terminate with the death of either party. They are also revocable by the owner of the freehold at all times before they are fully executed. 1 Chitty’s Gen. Pract. 339 ; 5 Dane’s Abr. 577 ; Viner’s Abr. License; Crosby v. Wadsworth, 6 East, 602 ; Tillotson v. Preston, 7 Johns. R. 285 ; Ferguson v. Miller, 1 Cowen, 243 ; Ex parte Coburn, ibid. 568 ; Cook v. Stearns, 11 Mass. R. 533 ; Johnson v. Carter, 16 Mass. R. 443. And when, during the execution of the authority and before its completion, “ the plaintiff came and forbid the defendant from removing any more earth,” it was clearly a revocation of the authority or license to enter upon his land for that purpose ; and the subsequent acts of the defendant in removing earth from it was a trespass.

Judgment of Court of Common Pleas affirmed

See Hobbs v. Lowell, 19 Pick. 405.