Ann R. Bassett vs. Inhabitants of Harwich

Massachusetts Supreme Judicial Court1902-02-28

180 Mass. 585

Summary · law.co

Holding. The court overruled the defendant's exceptions, holding that public use of a traveled way for over twenty years, even if accompanied by evidence of the landowner's acquiescence or attempted dedication, is sufficient to establish the route as a public highway by prescription and to impose liability on the municipality under the applicable statute.

Ann Bassett brought an action for personal injuries resulting from a highway defect. The defendant town of Harwich argued that the accident location fell outside the official highway boundaries, even though the public had used the area for over twenty years. Evidence suggested the adjacent landowner had moved a fence back to improve the route, which the town claimed constituted either a dedication or a permissive license rather than an adverse public use necessary to establish a highway by prescription.

The court rejected the town's reasoning, finding it based on a faulty legal premise. The court explained that a landowner's assent to public use does not automatically make that use permissive; if the landowner consents to use "as of right," such consent actually supports rather than defeats a prescriptive claim. Evidence of an attempted dedication—even if legally ineffective—demonstrates that subsequent public use occurred with the owner's repudiation of any right to prevent it, thereby establishing adverse use. The court concluded that unexplained public use for twenty years is sufficient to establish a public highway by prescription, without requiring proof of municipal maintenance or other municipal recognition.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a landowner's assent to public use defeats a prescriptive claim to a highway
Whether evidence of attempted dedication makes public use permissive rather than adverse
Whether unexplained public use for twenty years establishes a highway by prescription
Whether municipal maintenance or recognition is necessary to establish prescriptive highway liability

Procedural posture

The trial court refused the defendant's requested ruling that there was no evidence of a prescriptive highway, and the defendant took an exception to that refusal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Holmes, C. J.

This is an action for personal injuries alleged to have been caused by a defect in the highway. The defendant denied that the place of the accident was within the highway. It appeared that the place was outside the lines of the location but that it had been travelled by the public for over twenty years. There was some evidence that the fence had been set back at that point by the owner of the land in order to straighten the way, and the defendant’s contention was that, if that was the fact, it would be evidence of a dedication of the strip to public use, and of a license, and that the use by the public could not be presumed to be adverse in the absence of further evidence. On this ground a ruling was requested that there was no evidence that the place of the accident was a part of the highway by prescription. The ruling was refused and an exception was taken.

The defendant’s position seems to rest upon a confusion of ideas. It seems to assume that the assent of the landowner to the use of his land necessarily makes that use permissive. Such of course is not the law. If the assent is to use as of right, it helps rather than hinders the gaining of a title by prescription. If, for instance, a landowner makes a deed purport-. ing to grant a right of way in fee, and the deed turns out to be void, the production of the deed would be convincing evidence that the subsequent use of the way .was at once by the assent of the landowner and adverse. Boston & Worcester Railroad v. Sparhawk, 5 Met. 469, 474, 475. Society for the Propagation of the Gospel in Foreign Parts v. Pawlet, 4 Pet. 480, 506, 507. Macklot v. Dubreuil, 9 Mo. 473, 480. Nowlin v. Reynolds, 25 Gratt. 137, 143. Ketchum v. Spurlock, 34 W. Va. 597. So if the evidence tended to prove an attempted dedication, although the dedication failed because of Pub. Sts. c. 49, § 94, it would tend to show that the use thereafter was under a repudiation by the owner of any right to stop it. It would help, not hinder, the proof of an adverse use. Use by the public under such conditions, like a use wholly unexplained, if continued for twenty years, might be presumed to have been adverse and to have established a public way. See Valentine v. Boston, 22 Pick. 75, 81.

It is argued on grounds of public policy that even if the public has used the place adversely for twenty years the town ought not to be liable unless it has done some act in recognition of it as part of the highway, such as the making of repairs. This question is open only so far as it concerns the evidence necessary to prove a highway by prescription. On that question it is settled that use by the public, unexplained, is enough. Commonwealth v. Coupe, 128 Mass. 63. White v. Foxborough, 151 Mass. 28, 43, 44. The defendant does- not attempt to argue that there may be a highway by prescription for other purposes which nevertheless is not a highway for the purposes of liability under Pub. Sts. c. 52, § 18. The contrary always has been assumed. McKenna v. Boston, 131 Mass. 143, 146. Veale v. Boston, 135 Mass. 187, 189. See Guild v. Shedd, 150 Mass. 255, 256.

Exceptions overruled.