Damages, For property taken or impaired under statutory authority. Way, Public, Private. Easement. Evidence, Of extent of easement, Of agency. Agency, Existence of relation. Savings Bank. Corporation, Officers and agents. Practice, Civil, Judge's charge.
At the trial of a petition against the town of Brookline for the assessment of damages due to the taking of one half of a path, which provided a convenient means of communication between a much used street and a populous residential section on a hill, where it appears that one, who had been the owner of the path and of the land from which a large part of the residential section was developed, had made the path subject to an easement of use "for all the purposes for which such passageways now are or at any time hereafter may be commonly used in said town of Brookline," evidence is admissible, for the purpose of proving that no greater servitude existed after than before the taking, of the physical uses made of similar paths in Brookline as a means of access to the lots adjoining and of passing from one street to another and for the construction of drains and sewers and for the installation of gas, electricity and water, irrespective of the provisions of the deeds, instruments or public acts which created them.
At the trial of a petition by a banking corporation against a town for the assessment of damages due to the taking of one half of a path for a public footpath, the judge, subject to an exception by the petitioner, admitted in evidence a letter, written to the chairman of the selectmen of the town before the taking with regard to the town assuming care of the path by one, who enclosed with the letter a copy of a letter to the banking corporation from an owner of land adjoining the way demanding that the path be taken care of. The writer of the letter testified that he did not know how he came by the enclosed copy, that he "tried to sell and looked after the house on the petitioner's lot," and "that he had general charge" of it to that extent. The letter stated that the petitioner would be willing at any time to execute any conveyance or release which might be required if it should be found necessary or desirable to transfer any fee in the way to the town. There was evidence that the letter was written after a consultation between the writer and the president of the bank. Held, that the letter was inadmissible for any purpose, because the authority of its writer to bind the bank could not be shown from his statements, and there was no evidence that the president of the bank had any authority to delegate power to him.
The error committed by the admission of such letter was not cured by an instruction to the jury not to consider the letter unless they were satisfied of the authority of the writer to bind the bank; because on the evidence the jury would not have been warranted in any event in finding the existence of such authority.
The president of a savings bank has no authority merely by virtue of his office to delegate power to another to write a letter to a town containing offers or admissions as to the value of the bank's interest in a certain path in a town.
The owner of the fee in one half of a passageway in the town of Brookline, which provides a convenient means of communication between a much used street and a populous residential district on a hill and which is subject to an easement of use "for all the purposes for which such passageways now are or any time hereafter may be commonly used in said town of Brookline," has no right to build a structure over his half of the way nor to construct buildings which will drop snow, ice or water from their roofs upon it.
BRALEY, J.
The petitioner at the date of the taking owned in fee one half of the footway, the whole of which was subject to an easement of passage for the benefit of the owners of abutting estates and of other estates in the vicinity of its northerly entrance for all purposes for which such passageways "now are or at any time hereafter may be commonly used" in the defendant town. It undoubtedly was impossible to exclude the general public, as the way provided a convenient means of communication between a much used street at the southerly entrance and a populous residential section. By the terms of the grant the user is not restricted in terms to the owners of the dominant estates, their servants and agents, and the jury could find that the way was open for all purposes for which such passageways commonly were used.
The petitioner's damages being limited to the real value of the land taken and the injury to its remaining land, the evidence introduced by the respondent as to the physical use of other similar ways was admitted properly. It tended to show that no greater servitude existed after than before the taking, and within reasonable limits, which do not appear to have been exceeded, the witnesses could describe the conditions of travel over such ways. And, if it appeared that the petitioner's property had been benefited, the benefits could be set off against the damages. R.L.c. 48, § 84. R.L.c. 48, §§ 65-85. Chase v. Worcester, 108 Mass. 60, 66. Beale v. Boston, 166 Mass. 53, 55. Allen v. Boston, 159 Mass. 324. Cole v. Boston, 181 Mass. 374. Ham v. Salem, 100 Mass. 350.
The respondent also could prove by competent evidence, that the petitioner had offered to waive compensation and transfer the fee if the town would make the path a public way. Brown v. Worcester, 13 Gray, 31, 36. But the letter of Hardy containing this offer was admitted improperly. If the jury on his evidence could find, that it had been written after, and not before consultation with the petitioner's president, and the petitioner had received the letter of Blodgett, in which the proposal that the bank should make such conveyance appears, and transmitted it to Hardy, there is no evidence that the president had been authorized to make the proposition or complete the transfer. The declarations of an agent and his acts are not of themselves evidence of his authority binding his alleged principal. Brown v. Leach, 107 Mass. 364. Short Mountain Coal Co. v. Hardy, 114 Mass. 197, 213. Fletcher v. Willis, 180 Mass. 243. See Williams v. Dugan, 217 Mass. 526. To make the evidence admissible it was necessary for the respondent to introduce some evidence that the president had been authorized by either a by-law of the bank or vote of the trustees to consent to the taking and to waive all claim for damages. It cannot be inferred that he possessed such powers solely by virtue of his office. R.L.c. 113, §§ 14-20. St. 1902, c. 169, § 1. Greenfield Savings Bank v. Abercrombie, 211 Mass. 252, 255, 256. Gerrity v. Wareham Savings Bank, 202 Mass. 214, 219. New England Mutual Life Ins. Co. v. Wing, 191 Mass. 192. Nor did it follow from what the president is purported to have said, that he authorized or delegated Hardy to make the offer in the bank's behalf. Spaulding v. Jennings, 173 Mass. 65, 67. Chaffee v. Blaisdell, 142 Mass. 538. The instruction, that the jury were not to consider the letter with the enclosure unless satisfied that Hardy had authority to act as the petitioner's agent, did not cure this error. It necessarily assumed that the evidence might be found as matter of law sufficient to prove agency.
The petitioner having excepted seasonably to the admission of the letters and to the instruction, this exception must be sustained.
The other exceptions, which in so far as argued relate to the failure to give the fifth and seventh requests as framed, are not meritorious. The petitioner by the wording of the grant or grants creating the easement could not obstruct or arch over its half of the way. If it had this right the other abutters also possessed it, and the way could be encroached upon indefinitely until nothing but a narrow dark and dangerous path would remain. It is also plain from all the evidence, that the right of passage included the entire width open to the sky except possibly as narrowed by the shrubbery planted and maintained apparently by common consent along part of the borders. Lipsky v. Heller, 199 Mass. 310, 318. If before the laying out by the respondent other paths had been used for the location of telegraph, telephone and electric light poles, and the jury could find that the petitioner had been deprived of a similar use, the judge was not required to rule in the language requested, and the instructions amply protected its rights. Graham v. Middleby, 185 Mass. 349.
Exceptions sustained.