Easement, For railroad purposes, Abandonment. Railroad. Evidence. St. 1906, c. 463, Part II, § 80, prohibiting the acquisition of a prescriptive right in the land of a railroad corporation by an owner or occupier of adjoining land, has no application where the owner in fee of land, subject to an easement of a railroad corporation, has continuously and openly used and occupied the land as his own to the exclusion of the railroad corporation and with its knowledge and acquiescence, and contends that the railroad corporation has abandoned its easement.
At the trial of a petition against a railroad corporation for registration of title, upon the issue whether a strip of the petitioner's land was subject to an easement for railroad purposes or whether if such a right had been acquired by the respondent it had been abandoned, the petitioner was allowed to show that he and his predecessors in title had paid taxes on the strip from 1855 to the time of filing the petition. Held, that it could not be said that there was error in the admission of the evidence, which tended to show the nature and extent of the petitioner's claim and that the petitioner and his predecessors had availed themselves of the alleged abandonment.
On the issue whether a railroad corporation abandoned an easement for railroad purposes acquired by it by right of eminent domain over a certain strip of land, the owner of the land who claims a title free from the easement may show that there was no petition for damages for the taking of the strip of land in question, because the fact that the easement never was paid for makes it easier to draw the inference that it was abandoned.
On the issue whether a railroad corporation abandoned an easement over a certain strip of land, the owner of the land may show the former existence of a fence marking the boundary of the railroad location as excluding the strip, and that this fence had been the continuation of a fence which extended beyond his land, and he also may show that he used the strip for an orchard and garden and for the erection of a shed.
At the trial of a petition for registration of title against a railroad corporation, upon the issue whether an easement for railroad purposes over a strip of the petitioner's land had been abandoned by the respondent or its predecessors, a witness for the petitioner, who testified that he was employed in the city engineer's office, was allowed, against the respondent's exception, to testify that the city engineer's plans showed the boundary of the railroad location as excluding the strip in question. It did not appear that the plans were offered in evidence. They were not shown to have been made in the performance of any duty required by law or to have been connected in any way with the respondent, and it was not shown that the person who made them was deceased. Held, that the admission of the evidence was a material error.
SHELDON, J.
The judge of the Land Court found that the easement which otherwise would have been vested in the respondent had been abandoned, and in our opinion there was evidence which warranted this finding. Westcott v. New York New England Railroad, 152 Mass. 465. Bicknell v. New York New England Railroad, 161 Mass. 428. New York, New Haven, Hartford Railroad v. Benedict, 169 Mass. 262, 267. This made the respondent's first, second, third, fourth, fifth, ninth, tenth and eleventh requests for rulings immaterial. Its sixth and eighth requests were properly refused. St. 1906, c. 463, Part II, § 80, does not apply to a case like this, where the owner of the fee, subject to an easement in favor of the respondent, has continuously and openly used and occupied the land as his own to the exclusion of the respondent and with its knowledge and acquiescence. See Harding v. Biggs, 172 Mass. 590, 593, 594; Hall v. Boston Maine Railroad, 211 Mass. 174. It is not a question of the acquirement of rights in the land of a railroad company by an owner or occupier of adjoining land. Its twelfth request was given. The seventh request dealt only with a single one of the facts in evidence and need not have been given.
The petitioners were allowed to show that they and their predecessors in title had paid the taxes on this strip of land since 1855. We cannot say that this was wrong. Enfield v. Woods, post, 547. It tended to show the nature and extent of their claim, and that they had availed themselves of the abandonment which was claimed. Evidence that there had been no petition for damages for the taking of this strip was competent. That the easement never had been paid for made the inference of its abandonment easier to draw. As to this question, it was the converse of Hummel v. Cumberland Valley Railroad, 175 Penn. St. 537, 539, and Canton Co. v. Baltimore Ohio Railroad, 99 Md. 202.
Evidence as to the location and character of the fence and the time of its existence was competent. It was a reasonable inference that it had been erected by the respondent's predecessor, or with its consent, and adopted by the respondent as the boundary of the land over which it claimed and exercised an easement. And evidence that it was the continuation of a fence beyond the petitioners' land tended to strengthen this inference. In this respect the case of Smith v. New York New England Railroad, 163 Mass. 569, is different.
The evidence as to the use of this strip for an orchard and garden and for the erection of a shed was plainly competent.
But we see no ground for the admission of the testimony as to what was shown by the city engineer's plans. Smith v. New York New England Railroad, 163 Mass. 569, 573. They were not ancient plans; they were not shown to have been made in the performance of any duty required by law; they were in no way connected with the respondent. They simply showed the unsworn statement as to a material question made out of court by a third person who was not shown to be deceased. The admission of this testimony was excepted to. It seems to have been considered by the judge, and may have turned the scale in favor of the petitioners. He said that he gave very little weight to some other evidence the admission of which was excepted to; but he made no similar statement as to this.
This evidence was wrongly admitted, and the entry must be
Exceptions sustained.