Levenson v. Ciampa

Wait, J.

The Land Court has jurisdiction over the subject matter of this petition, not only to register the title, but also to determine the extent of the easement claimed by the petitioner, G. L. c. 185, § 1(a).

The burden of proof was on the petitioner. Lipsky v. Heller, 199 Mass. 310 . Hughes v. Williams, 229 Mass. 467 .

The testimony objected to was no more than a description of the premises and of the conduct of the holders of the easement in the passageway in regard to the use made of it. Such testimony has been admitted and considered in many cases, for the reasons set out in Salisbury v. Andrews, 19 Pick. 250 (see also 128 Mass. 336 ), and has not been confined to testimony of events strictly contemporaneous with the creation of the easement. Atkins v. Bordman, 2 Met. 457 . Burnham v. Nevins, 144 Mass. 88 . Crocker v. Cotting, 181 Mass. 146 . Its admission was within the discretion of the trial judge.

In so far as the question involved the determination of fact, the decision of the Land Court was final. . G. L. c. 185, § 15. We cannot say that the evidence as matter of law was insufficient to justify the conclusion reached. The length and nature of this passageway from street to street, and the size and shape of the lots which it served were significant. They bring the case within the class exemplified by Crocker v. Cotting, 181 Mass. 146 , and Salisbury v. Andrews, 128 Mass. 336 , rather than that illustrated by Duncan v. Goldthwaite, 216 Mass. 402 , Burnham v. Nevins, 144 Mass. 88 , and Atkins v. Bordman, 2 Met. 457 .

Exceptions overruled.