Hyde v. County of Middlesex

Dewey, J.

1. The court perceive no objection to the admission of the evidence tending to show that Tufts, the former owner of the land, after having removed a building ftom a part, of the land taken for a highway, made certain declarations as to dedicating to the public the land thus vacated. Land may be thus dedicated; and the declarations of the owner, indicating such purpose, are competent evidence, to be taken in connection with other facts, to establish the dedication. Such evidence is not to be rejected upon the ground that the declarations of a former owner of land, while owner, are inadmissible to defeat the title of a subsequent purchaser. The case does not fall within the class of cases cited by the petitioner.

2. But -the instruction to the jury was erroneous. The petitioner claimed damages- for the effect which the location of the road would have upon his future use of certain door steps standing on the land taken for a highway, and also of a conductor of the eave spouts, and a bay window, projecting over *270 the line of the highway, as established. As to this claim for damages, the jury were instructed, that if they, as practical men, believed these constituted no obstruction to the public use of the highway, the petitioner would be entitled to no damages.

This ruling assumed that the right of the petitioner to con tinue these fixtures would depend upon the fact whether they were actual obstructions to the use of the highway. This, as respects the steps at least, was a wrong view of the matter. They were obstructions on the surface of the road; and, as such, were liable to be removed. The petitioner was subject to an indictment for a nuisance by continuing them on the highway, irrespective of the fact whether they incommoded the public travel. By the location of a highway, the public acquire an easement coextensive with the exterior limits of such highway. An occupation of any part of-a highway, by the erection and use of any fixture, or a deposit of any timber or other articles, is a nuisance, and subjects the party to an indictment. This point was directly decided in Commonwealth v. King, 13 Met. 115 .

The jury should have been instructed, as to the steps, that it would be the duty of the petitioner to remove them; and if he permitted them to remain, it would be at the hazard of being indicted for a nuisance.

As to the conductor of the eave spouts and the bay window, the rule might be different, if they were at such an elevation from the surface of the highway as to withdraw them from it, and from interfering with the use of the entire limits of the highway, or in any way affecting the same.

Verdict set aside.