Case Summary: Mary E. Gifford v. Inhabitants of Westport, et al. (Supreme Judicial Court of Massachusetts, Feb. 27, 1906)

Factual and Procedural Background

In 1857 Jonathan Gifford and Edward Akin built a boat house on a public landing in Westport. In 1867 Akin sold his interest to Gifford. Jonathan Gifford died in 1896 and left his property to his widow, the plaintiff, Mary E. Gifford. In 1900 the plaintiff's son built a new boat house on substantially the same place as the old one. In 1905 the town's board of landing commissioners moved that new building to another part of the beach; the son returned it to its former location.

The plaintiff filed a bill in equity in the Superior Court on February 27, 1905, seeking to enjoin the defendants (the town of Westport and its landing commissioners) from removing the boat house, alleging it had been used for housing boats and storing fishing equipment for more than forty years. A temporary injunction issued. A judge of the Superior Court heard the case, filed a memorandum of decision, and entered a decree dismissing the bill with costs. The plaintiff appealed from that decree. The record contains a full report of the evidence.

Legal Issues Presented

Whether, under the controlling statute (originally Rev. Sts. c. 24, § 61, and later codifications), possession of less than forty years can give a private party the right to maintain a building on a public landing where the landing's boundaries can be made certain.
Whether any possession that would support such a statutory right must be adverse and under a claim of right (i.e., hostile to the public) in order to mature into an absolute right to continue the building.
Whether a period of neglect or abandonment by the owner interrupts or defeats an otherwise accruing forty-year claim of right (specifically, whether the plaintiff's devisor's alleged nonuse and mental incapacity in later years constituted a substantial abandonment that prevented the acquisition of rights under the statute).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Commonwealth v. King, 13 Met. 115	Support for the principle that placing a private structure on a public landing is an intrusion at common law and constitutes a nuisance.	The court cited it (among others) to show that the original placement of the boat house on a public landing was an intrusion and a nuisance at common law.
Morton v. Moore, 15 Gray, 573	Support for the nuisance/intrusion rule regarding structures on public landings.	Used with other authorities to establish that a private building on a public landing is an intrusion and a nuisance at common law.
Commonwealth v. Blaisdell, 107 Mass. 234	Support for the common-law rule that private occupation of a public landing is an intrusion/nuisance.	Relied on as one of the cases establishing that a structure placed on a public landing is an intrusion and a nuisance.
New Salem v. Eagle Mill Co., 138 Mass. 8	Referenced both for the nuisance principle and for statutory interpretation related to public places.	Cited as authority consistent with the view that a private building on a public landing is an intrusion and as a supporting reference in construing the relevant statute.
Cutter v. Cambridge, 6 Allen 20	Construction of Rev. Sts. c. 24, § 61: the statute recognizes that fences (and by analogy structures) maintained under a claim of right for forty years within public limits give the owner an absolute right to continue them against the public.	The court quoted Cutter to explain the statutory rule that a forty-year adverse, claim-of-right possession creates an absolute right to continue the structure against the public.
Parker v. Framingham, 8 Met. 260, 268	Supporting authority cited in connection with Cutter and the forty-year rule under the statute.	Offered as additional supporting authority for the construction that forty years' adverse possession under claim of right yields an absolute right against the public.

Court's Reasoning and Analysis

The court's analysis proceeded from two core legal propositions grounded in statute and prior decisions:

Statutory framework: The court identified the controlling statute in force when the first boat house was built as § 61 of the Revised Statutes, c. 24, which provides that where the boundaries of a landing place can be made certain, "no length of time, less than forty years, shall justify the continuance of a fence or building, on any . . . landing place." The court noted that this provision has been carried forward in substantially the same form through subsequent codifications (Gen. Sts. c. 46, § 1; Pub. Sts. c. 54, § 1; R.L. c. 53, § 1).
Requirement of adverse possession under a claim of right: Relying on Cutter v. Cambridge and related authorities, the court accepted the principle that the statutory protection (the right to continue a structure) accrues only where there has been possession for forty years that is adverse and under a claim of right; the statute was construed to recognize that such a forty-year adverse possession gives an absolute right to continue the structure against the public.
Application to the facts: The judge below found (and the Supreme Judicial Court affirmed) that the evidence did not show the original boat house had been put up under a claim of right or maintained adversely. Even assuming, arguendo, an adverse claim had existed earlier, the judge found—and the appellate court agreed—that the plaintiff's devisor made no use of the building for about eight years before his death, was mentally incapacitated during that period, and that for many years before 1897 there had been substantial neglect and substantial abandonment of the building's use and condition (neglect, decay, ruin). The judge concluded that by 1897 (the year it was contended the forty-year limit had run) there had been a substantial abandonment of the use to which the building had formerly been put.
Conclusion drawn from the findings: Because there was no established adverse, claim-of-right possession for forty continuous years (and because of the substantial abandonment shown), the plaintiff could not rely on the statute to validate the continued presence of the boat house on the public landing. The appellate court concluded that the Superior Court judge's findings and conclusions were correct and declined to disturb them.

Holding and Implications

Holding: The bill in equity was dismissed, with costs, and the plaintiff was not entitled to injunctive relief to prevent removal of the boat house.

Implications:

Direct effect on the parties: The plaintiff's request for an injunction was denied; the decree dismissing the bill was affirmed, and costs were awarded against the plaintiff. The court's reasoning supports the proposition that, absent a continuous forty-year adverse possession under a claim of right (and where there has been substantial abandonment), no statutory right to maintain a private building on a public landing is established.
Removal as nuisance: The opinion (as summarized in the syllabus and reflected in the court's reasoning) indicates there was nothing to prevent the removal of the boat house as a nuisance where the statutory conditions for preservation had not been met.
Precedential effect: The opinion applies existing statutory construction and authorities to the facts and does not announce a novel legal principle beyond those applications; it affirms that the forty-year statutory protection requires adverse possession under a claim of right and that abandonment will defeat reliance on that period.

Source limitation note: This summary is based exclusively on the text of the provided opinion and does not add information beyond what appears there.

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MARY E. GIFFORD vs. INHABITANTS OF WESTPORT others.

Landing Place. Limitations, Statute of. Nuisance. Under Rev. Sts. c. 24, § 61, Gen. Sts. c. 46, § 1, Pub. Sts. c. 54, § 1, R.L.c. 53, § 1, no right to maintain a private building on a public landing place the boundaries of which can be made certain can be acquired by a possession of less than forty years. Here in the case of a boat house it was held that the evidence justified a finding that for many years before the limit of time had run there had been a substantial abandonment of the use to which the building formerly had been put, and that there was nothing to prevent the removal of the boat house as a nuisance.

LATHROP, J.

This is a bill in equity, filed in the Superior Court on February 27, 1905, by the widow and devisee of Jonathan Gifford, against the town of Westport and the board of landing commissioners of that town, appointed under the St. of 1848, c. 171, to restrain the defendants by injunction from removing from the public landing place in the town a small boat house, alleged to have been used for the housing of boats, and the storage of fishing tackle, sails, oars and warps, for more than forty years.

An act for the regulation of public and town landings in the town of Westport.

On the bill being filed a temporary injunction was issued, and the case was afterwards heard by a judge of the Superior Court, who ordered a decree to be entered dismissing the bill, with costs. He also filed a memorandum of his decision, stating the reasons therefor; and the case is before us on an appeal from the decree. The record contains a full report of the evidence.

A boat house was built in 1857, by Jonathan Gifford and Edward Akin, on the landing place in question. In 1867 Akin sold out his share to Gifford, who died in 1896, leaving his property to his widow, the plaintiff. In 1900 a new boat house was built on substantially the same place as the old one, by the plaintiff's son; and in 1905 the landing place commissioners of Westport moved the new building to another part of the beach. The son moved it back to its former location; and this bill in equity was brought.

There can be no doubt that the placing of the old boat house on a public landing was an intrusion at common law, and made the building a nuisance. Commonwealth v. King, 13 Met. 115. Morton v. Moore, 15 Gray, 573. Commonwealth v. Blaisdell, 107 Mass. 234. New Salem v. Eagle Mill Co. 138 Mass. 8.

If the plaintiff is entitled to recover it must be that under the statute there had been acquired a possession for forty years. The judge ruled that this possession must be adverse, and under a claim of right, and found that there was no such possession. The statute in force when the first boat house was built was § 61 of the Rev. Sts. c. 24, which provides that when the boundaries of a landing place, among other public places mentioned, can be made certain, (as here) "no length of time, less than forty years, shall justify the continuance of a fence or building, on any . . . landing place." This statute, in substantially the same form, has come down to the present time. Gen. Sts. c. 46, § 1. Pub. Sts. c. 54, § 1. R.L.c. 53, § 1.

In Cutter v. Cambridge, 6 Allen, 20, 24, it was said by Mr. Justice Hoar, in construing the Rev. Sts. c. 24, § 61: "The language of the statute, though negative in form, was intended to be affirmative in substance; and to recognize as an existing rule of law, that fences, maintained under a claim of right for forty years within the limits of the highway, give to the owner an absolute right to continue them there as against the public." See also Parker v. Framingham, 8 Met. 260, 268; New Salem v. Eagle Mill Co. 138 Mass. 8.

There is nothing in the evidence in the case at bar to show that the original boat house was put up under a claim of right, or that it was maintained adversely. But if this were otherwise the judge further found that the plaintiff's devisor made no use of the building during a period of about eight years preceding his death; "and that during that time, as admitted at the hearing, he was mentally incapacitated to act or to have a purpose to act or assert; that during that period, and for some years before, the building had been neglected, suffered to fall into decay and substantial ruin; that in the year 1897, when it was contended that the limit of time had run, there was and had been for many years a substantial abandonment of the use to which the building had formerly been put."

An examination of the evidence satisfies us that the judge was right in the conclusions which he reached. To review the evidence at length would serve no useful purpose. We concur in the finding of the judge that the plaintiff is not entitled to the relief sought.

Bill dismissed, with costs.

GIFFORD v. WESTPORT