put an end to the way of necessity, so that the use of the passageway by Ballard as a means of access to lot D became adverse; and the plaintiffs claimed that they had since acquired a right of way over the passageway between the lot D and Ordway place by an open, adverse, and uninterrupted user of the same by Ballard and the plaintiffs and their respective tenants. There was no evidence of any actual notice to or knowledge by the defendant's predecessors in title that the right of way hy necessity had been lost, or that the lot D had come into the same ownership with the adjoining lands on Bromfield street. There was no evidence of notice to or knowledge by Hubbard or his successors in title of the existence of a way of necessity, except the facts herein before set forth, and so far as he was affected with notice by the foregoing conveyances which may be referred to.

The structure of the buildings covering the passageway remained unchanged from the time when they were built by Coolidge, in 1829, down to 1887, when the defendant erected a building known as the “Boston Tavern,” complained of as an obstruction, and thereby obstructed the passageway to the damage of plaintiff. During the period from the purchase by Hubbard in 1829 to 1860, when purchased by Milliken, defendant's estate, including the two houses over and on either side of the passageway, was in the occupancy of tenants, so far as occupied at all, and was never occupied by the owners themselves; and the tenants changed from time to time, and on the 1st of May in every year it was occupied by tenants. From 1817 to 1855 defendant's premises were owned by minors. In 1860, while the user of the passageway by Ballard and his tenants here. in referred to was continuing, defendant's premises were conveyed to one Milliken, who entered into possession and occupancy of the same, and converted the same into an hotel, which he personally occupied for a considerable period, but how long was not in evidence; and said hotel was carried on by five other landlords in succession, from before 1864 to after 1872, but for how much longer did not appear; and on June 7, 1887, the property was conveyed by Milliken's executor, by leave of the probate court, to one Marcus, and was the same day conveyed by Marcus to defend. ant. The deeds by which the two lastmentioned conveyances were made referred to a plan upon which the premises conveyed and the passageway were delineated, and were expressed to be subject to the three-foot passageway as then existing and used, and to the drain therein, and the rights of all persons, if any, legally entitled to use said way and drain. The landlords of the hotel used the passageway as an approach to the rear of their premises and for other purposes, and a witness for defendant testified that he was employed from 1864 to 1872 as porter in the hotel, and, as part of his duties, swept the passageway, and kept it in order. The rights of Gould and his successors in title have never been released, and are still in force. There was evidence covering the period from 1844 to 1857 of open, continuous, and

uninterrupted use of the passageway by tenants of a shop on lot D, when it was occupied, and by the employes and agents of Mr. Ballard and of the plaintiffs at all tmes, for access thereto. As to the period during which the hotel was carried on by other landlords than Milliken, the only evidence of Milliken's knowledge of the use of the passageway were the facts and evidence herein before mentioned.

J. L. Thorndike, for plaintiffs. Geo. Pntnam and W. L. Putnam, for defendant.

FIELD, C. J. According to the report the passageway was established by the deed of lot A from Coolidge to Gould, dated June 26, 1828, and it was and is appurtenant to lot A by grant. Lot B was conveyed by Coolidge to Ballard afterwards on the same day as the conveyance of lot A to Gould, but no rights in the passageway were granted to Ballard. Lot C was conveyed on July 15, 1829, by Coolidge to Hubbard, and "at this time there were two brick houses on lot C, built by Coolidge, with an arched passageway three feet wide under and between them, as indicated by the words "covered passageway" on said plan. Lot D was conveyed on October 13, 1829, by Coolidge to Thorn. dike, who, on October 22, 1829, conveyed it to Ballard, neither deed giving any rights in the passageway. It is conteuded that from the time of the conveyance of lot C to Hubbard-being July 15, 1829-to the time of the conveyance of lot D to Ballard, namely, October 22, 1829, there was a way by necessity over lot C to and from lot D. It is also argued that this way by neces. sity ceased when Ballard became the owner of lot D, because Ballard had a way out to Bromfield street over lot B and his other land. This is true if Coolidge, after conveying lot C, had no other way out from lot D to a public street, and it is not found that he had such a way, and if the difficulty of making a new way out over lot B and the other land of Ballard to Bromfield street was not so great as to make the construction of such a way impracticable. There was no evidence that any of the parties actually knew that a way by necessity ever existed, or that this way had been lost by the conveyance of lot D to Ballard. An examination by any of the parties of the title to his lot in the registry of deeds would not necessarily have shown this. Whether on a conveyance of a lot of land a way by necessity arises by implication from the deed in favor of some other lot of the grantor can only be determined by an examination of the title of all the land surrounding this other lot. On the theory of the defendant, Ballard and those claiming under him as owners of lot D never had a way by necessity, because such a way ceased the moment when lot D was conveyed to Ballard. The defendant contended, as the report states, that without "notice or knowledge by the defendant of the cessation of the plaintiff's right his use must be attributed to his right as if it had still continued." The court "declined so to rule, and ruled that, notwithstanding the absence of such notice of cessation, a right of way by prescription might be ac

99

quired by adverse and continuous use of the way for more than twenty years.' The case was tried without a jury, and there is no finding that either the owners of lot C or of lot D ever in fact knew that there was a way by necessity, or knew that such a way, if it ever existed, had ceased. When a right of way is known to exist, it may be that acts of the owner of the dominant tenement in using the way, if consistent with his right, are to be referred to it, unless a different claim of right is made known to the owner of the servient tenement; but this rule can have no application where it is not shown that the owner of the servient tenement knew of any right of way, and acquiesced in the user on the ground that it was in pursuance of the right. Ballard, when he purchased lot D, and found it connected with a public street by an open and visible pri vate way, cannot be held, as matter of law, to have known that the origin of the way was by necessity, and that the right of way ceased when the lot was conveyed to him. As a right of way by necessity, once existing, may cease in consequence of the conveyance of either the dominant or servient estate, or of other estates sur. rounding the dominant estate, or of the grants of private rights of way, or of the laying out of public ways, it may often be true that it is as much the duty of the owner of the servient estate as it is that of the owner of the dominant estate to ascertain when the right of way ceases. The ruling on the facts found in the present case was right.

The principal contention is that, as the owner and occupants of lot A had a right to use this way over lot C, the owners of lot C could not prevent the owners or occupants of lot D from using it, and that, therefore, no right of way by prescription could be acquired in favor of lot D. But the fact that certain persons have a right of way by grant does not prevent other persons from acquiring a prescriptive right to use the way. Railroad Co. v. Page, 131 Mass. 396; Webster v. Lowell, 142 Mass. 325, 8 N. E. Rep. 54. The statutes offered an easy method of preventing the acquisition of a right of way which the defendant and his predecessors in title could have pursued. St. 1824, c. 52; Rev. St. c. 60, § 28; Gen. St. c. 90, $$ 34. 35; Pub. St. c. 122, §3.1 We have no doubt that a user of the way by persons having no right to use it could have been interrupted in other ways, and possibly, under the circumstances, a notice posted on the side of the way would have

1Pub. St. 1882, c. 122, § 3, provides that "when a person apprehends that a right of way or other easement in or over his land may be acquired by custom, use, or otherwise by any person or class of persons, he may give public notice of his intention to prevent any person from acquiring such easement by causing a copy of such notice to be posted in some conspicuous place upon the premises for six successive days, and the posting of such copy shall prevent the acquiring of such easement by use for any length of time there. after, or may prevent a particular person or persons from acquiring such easement by causing a copy of such a notice to be served upon him or them in the manner provided by law for the service of an original summons in a civil action."

An

been sufficient, but we have no occasion to determine this. Since the decision of Allis v. Moore, 2 Allen, 306, and of Currier v. Gale, 3 Allen, 328, and the opinion in Edson v. Munsell, 10 Allen, 557, we think that it must be considered that the acquisition of an easement by adverse use follows the analogy of the acquisition of title by adverse possession, and that a disability arising after the adverse use has commenced and has become known to the owner of the servient estate does not suspend the acquisition of the right, or extend the time necessary to acquire it. This rule should apply to tenancies created after the adverse use has commenced. additional reason for adopting the rule is that, under the statutes we have cited, an owner, although not in possession, can prevent the acquisition of a right of way over his land. We think, without considering the facts as they were found to have existed before the year 1860, that it is sufficient that it has been found that in that year the servient estate was conveyed to Milliken, and that he personally occupied it for a considerable period, and that afterwards it was occupied by other landlords,-whether as his tenants or employes we do not know,-and that it was sold in 1887, by the executor of his estate, and that from 1880 to 1887 "the plaintiff's use of the passageway" was known to Milliken and his executor, and was open, adverse, and continuous.” Upon these facts we are of opinion that the finding was correct, and that there must be judgment on the finding.

66

(156 Mass. 480)

COMMONWEALTH V. LAPHAM. (Supreme Judicial Court of Massachusetts. Middlesex. June 21, 1892.) BRIBERY-INDICTMENT-MOTION TO QUASH.

1. Under Pub. St. c. 205, §9, which makes it a crime to bribe "any executive, legislative, or judicial officer,' an indictment for attempted bribery of a milk inspector is sufficient which sets out all necessary facts in relation to his official position, though it does not set forth in terms that he was an executive officer.

2. It is not necessary that the indictment aver that the corrupt intention to influence the act or judgment of the inspector was in relation to any specific matter then pending before him; it is enough to aver a corrupt intention so to influence him in any matter pending before him, or which may by law come or be brought before him.

3. Under Pub. St. c. 57, § 2, which provides that when such inspectors find milk that is adulterated they shall take specimens thereof, and cause the same to be analyzed or otherwise satisfactorily tested, an averment that the inspector had caused the specimens to be "analyzed or otherwise satisfactorily tested" was sufficient, though in the alternative.

4. Where the result of the analysis was required by law to be recorded and preserved as evidence, and a certificate of such result, sworn to by the analyzer, was made admissible in evidence against defendant, an averment that the analysis showed that the milk was not of a good standard quality was sufficient.

5. Where one of the counts in the indictment was good, a motion to quash was properly overruled; it being immaterial whether the other counts were good or bad.

Exceptions from superior court, Middlesex county; JOHN HOPKINS, Judge. Indictinent against Nathan B. Lapham

for bribery. Verdict of guilty, and defendant excepts. Exceptions overruled.

Chas. N. Harris, Second Asst. Atty. Gen., for the Commonwealth. Francis W. Qua and Harry A. Brown, for defendant.

ALLEN, J. 1. By Pub. St. c. 205, § 9, it is made criminal corruptly to give, offer, or promise a bribe to any executive, legislative, or judicial officer. The present indictment for attempted bribery of a milk inspector does not set forth in terms that he was an executive officer, and therefore the defendant contends that it cannot be supported as a good in lictment for the statutory offense; and that it is not a good indictment at common law, because milk inspectors are to be deemed executive officers, and therefore the bribery of a milk inspector must be indicted or punished under the statute, if at all. But, even if a milk inspector is to be deemed an executive officer within the meaning of the statute, (which is open to question,) it is not necessary to set out that inference of law in the indictment. The indictment set out with sufficient fullness all necessary facts in relation to his official position; and whether he was within the meaning of the statute or not, the objection on this ground cannot prevail.

2. Nor is it necessary, in an indictment under the above-mentioned section of the statute, to aver that the corrupt intention to influence the act, opinion, decision, or judgment of the inspector was in relation to any specific and particular matter then pending before him, or which was then expected to come before him. It is enough to aver a corrupt intention so to influence him in any matter which may then be pending, or which may by law come or be brought before him. If, for example, an executive, legislative, or judicial officer is bribed corruptly to favor a particular person in any and all matters affecting that person which may come before such officer, without specification or knowledge of the particular matters likely to come up, the statute is broad enough to include such a case. A narrower construction of a similar statute has been adopted in Alabama, but we cannot follow it. Barefield v. State, 14 Ala. 603.

test was wrong, and that in point of fact the milk was of good, standard quality, this would not relieve the defendant from the guilt of bribery. The offense of bribery may be committed with a view to escape a prosecution, or to render acquittal certain, even though no previous offense has been committed.

5. Every reason assigned in support of the motion to quash went on the ground that no count in the indictment was good. If any count was good, the motion to quash was properly overruled. The defendant asked the court to rule that there was no evidence sufficient to support the first count. There was no request in respect to any other particular count. We are of opinion that the first count was good, and that it was well supported by the evidence. It is therefore quite immaterial whether the other counts are good or bad. Com. v. Boston & M. R. Co., 133 Mass. 383.

Exceptions overruled.

(156 Mass. 485)

COMMONWEALTH V. HAM. (Supreme Judicial Court of Massachusetts. Middlesex. June 21, 1892.)

FAILURE TO SUPPORT WIFE-EVIDENCE. 1. In a prosecution against a husband for neglecting to support his wife, he introduced evidence of misconduct, charging her with breaches of her marriage duty, and with having declared that she would not live with him. In rebuttal his charges were contradicted, and two decrees put in evidence; the first was a decree of the probate court on petition of the wife for separate maintenance, and the other a decree dismissing his libel for divorce on the grounds of drunkenness and cruelty. Held, that they were properly admitted as tending to explain her conduct.

2. Defendant requested an instruction that to justify his neglect his wife's habits of intoxication need not be so gross as to entitle him to a divorce, and a similar one as to her alleged cruel treatment. The court charged that the jury had a right to consider such facts as they might find, but refused the instruction asked as matter of law. Held, that the charge was sufficiently favorable to defendant, and the question was properly left to the jury.

Exceptions from superior court, Middlesex county; JOHN HOPKINS, Judge.

Prosecution against Foster Ham for unreasonably neglecting to provide for the support of his wife. Verdict of guilty, and defendant excepts. Exceptions overruled. G. C. Travis, Asst. Atty. Gen., for the Commonwealth. C. Cowley, for defend

ant.

4. The averment that the analysis and test showed that the milk was not of good, standard quality was sufficient. The result of the analysis or test was required by law to be recorded and preserved as evidence, and a certificate of such result, sworn to by the analyzer, was made admissible in evidence in a prosecution against the defendant. If it could be shown that the result of the analysis or

HOLMES, J. This is a complaint under chapter 176 of the Acts of 1885, charging the defendant with unreasonably neglect

He set up that his neglect to do so was not unreasonable in view of her conduct, and charged her with various breaches of her marriage duty, and with having declared that she would not live with him. In rebuttal the defendant's charges were contradicted, and two records also were put in subject to the defendant's exceptions. The first of these was a decree of the probate court, upon a petition by the wife for separate main. tenance, declaring that the wife was liv.

ing apart from the defendant for justifiable cause, and ordering him to pay her $16 a month. The second was a libel by the husband for divorce on the grounds of drunkenness and cruelty, and a decree dismissing the same after hearing. There is nothing to show that these records were let in as evidence of the facts decided, as tending to prove that the defendant's wife was living apart from him for justifiable cause, or that she had not been guilty of cruelty, and had not gross and confirmed habits of intoxication. But with regard to what is called in Brigham v. Fayerweather, 140 Mass. 411, 413, 5N. E. Rep. 265, the "legislative effect" of the decree, in the former case, in so far, that is, as the decree created an obligation on the defendant to pay his wife $16 a month, it would be impossible to say that it had no bearing on the question whether he was reasonable in refusing to pay her any thing, notwithstanding the fact that it was res inter alios.

The ground, however, on which both decrees were admitted was a broader one, no doubt. The defendant took the position that less than sufficient to entitle him to a divorce would justify him in refusing to support his wife, and went into evidence of her conduct generally. The decrees were facts bearing on the same subject, and tending to explain her conduct, and therefore were admissible in rebuttal. The alleged declaration of the wife, for instance, that she would not live with the defendant, assumed a different color if made after the two proceedings, the records of which were introduced. The evidence was admissible for the purpose explained.

The defendant asked an instruction that to justify his neglect his wife's babits of intoxication need not be so gross or so confirmed as to entitle him to a divorce, and a similar one as to her alleged cruel and abusive treatment. The judge left the question to the jury at large, saying that they had a right to consider such facts as they might find, but that he could not say as matter of law that the habits need not be so gross, or the cruel treatment of such a degree, as to entitle him to a divorce. The plain meaning of the charge was to leave the whole matter to the jury. If they thought, under the cir cumstances of the case, which had been detailed to them, that the defendant would not have been justified in neglecting to support his wife by less than a good cause for divorce, they were at liberty to find so. They were equally at liberty to find that the defendant was justified by much less than what would have amounted to a cause of divorce. It is enough to say that so far as appears this was sufficiently favorable for the defendant. If it ever be true that an offense short of a cause for divorce will justify a husband as against the commonwealth in neglecting to support his wife, whether in a particular case cruelty or intoxication falling short of that will be enough, must depend on the circumstances. There is no universal proposition that can be laid down with any advantage. Exceptions overruled.

PYE V. FAXON.

(156 Mass. 471)

(Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1892.)

TRESPASS-NEGLIGENCE OF CONTRACTOR - LIABILITY OF OWNER-DAMAGES.

1. Where plaintiff sustains damage by the dropping of mortar and bricks during the erection of a wall next to the premises occupied by her, defendant, for whom the wall was being erected, is not liable for such damage if it was not a necessary result of the building of the wall, but was caused by the negligence of his contractor or of the contractor's servants.

2. The injury caused by dust arising from the dumping of loads of brick near plaintiff's residence may be so trifling as not to be actionable, or there may be evidence of such excessive and long-continued annoyance therefrom as to warrant the submission of the question of damage caused thereby to the jury.

3. Where plaintiff has a cause of action against defendant for damage accruing to her in the course of the erection of a building by defendant next to the property occupied by her as a lodging house, she is entitled to compensation for loss of rents caused by her lodgers relinquishing their rooms, if this is attributable to defendant.

Exceptions from superior court, Suffolk county; DANIEL H. BOND, Judge.

Action of tort by Annie F. Pye against J. Franklin Faxon. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

O. B. Mowry, for plaintiff. Lund, Jewell & Welch, for defendant.

LATHROP, J. This is an action of tort. The plaintiff is a tenant at will of a house in Boston used by her as a home and as a lodging house, and the defendant is the owner of an adjoining lot of land. The action is brought to recover for various trespasses alleged to have been committed by the defendant upon the plaintiff's estate, while the defendant was engaged in putting up a large building for busi. ness purposes on his land. The declaration alleges that the plaintiff unlawfully threw or dropped upon the plaintiff's premises mortar, bricks, and debris, inter fered with the free and unobstructed use by the plaintiff of her back yard, caused much dust to be deposited in sundry rooms of the plaintiff's house, thereby interfering with the comfort and enjoyment of the plaintiff's house, and that the defendant interfered with and prevented the plaintiff's letting many of her rooms to lodgers. The jury returned a verdict for the plaintiff, and the case comes before us on the defendant's exceptions.

The plaintiff testified in respect to the matters set forth in her declaration, and also testified-apparently without objection to other trespasses. The defendant asked the judge to rule that there was a variance between the declaration and the proof, and that the plaintiff could not recover “for any of the acts or injuries shown by the plaintiff's evidence." The judge rightly refused so to rule. There was evidence to sustain the allegations of the declaration. If the defendant wished to exclude evidence of other trespasses he should have objected to it at the time, or have asked the judge afterwards to instruct the jury not to regard it.