Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1908-12-16
FROM THE LAW COURT.

Rescript in Case of Nicholson VS..
Maine Central Railroad.
The law court has handed down its de-
cision in the long standing case Of Thomas
NJ. Nicholson VI. the Maine Central rail-
road. The rescript follows:
Real action. The defendant disclaimed rs
to part OF the demanded premises. and
claimed an easement in the balance under .
legal and valid location for its railroad. The
plaintiff replied that part at least OF the
right OF way secured by this location bad
been abandoned. At the close Of the testi-
mony the presiding justice directed . gem
eral verdict for the plaintiff rs owners OF the
fee, special verdict that the premises were
subject to an easement in favor OF the de-
sendant .for the use of that portion OF the
demanded premises for railroad purposes
comprised by the location made April J. 1873,
except SO far as the same is covered by
buildings at the present time
The plaintiff excepted to this ruling, and
also filed a general motion to set aside the
special verdict as against Law and evidence.
Abandonment, which was the sole issue in
this case. lie a question OF intent. sTo consti-
tute an abandonment Of right of way, there
must be a clear, uneauivocai and decisive act
of the party showing determination not to
have the benefit intended" Mere failure TO
occupy a right Of way. without other circum-
stances to show abandonment of failure OF the
purpose for which the use is granted, will
not operate to divest the title Of the owner
thereof. Townsend Mich Gen. Il. r., ioi
Fed. Rep. ISL. Our court said in Fitzpatrick
Y. B. &. NJ. r. R., 81 Maine, s. at is not the
duration OF the lessor to use the easement,
but the nature Of the act done by the owner
of the easement or of the adverse act acqui-
esced in by him, and the intention which one
or the other indicates, that Is material"
1t appears in evidence in this case that
when the railroad was first built 1t extended
to the zero point, so called. of the location.
In 1879 or 1850 the guage of the road WAS
changed, and at that time two lengths OF rails
of thirty feet each were taken up at the east
erly end Of the location and a bunting post
and brace were placed at the westerly end Of
this sixty-foot strip to mark the new termi-
nus, which has remained unchanged to this
day. Since that time the defendant has made
no use whatever Of this sixty-foot strip. while
the plaintiff has erected buildings upon Q
portion Of it and has used the portion next
easterly Of the bunting post for driveway 70
and from the wharf property lying toward the
south. Under these circumstances and con-
sidering all the facts Of the case, the court is
Of opinion that IL the defendant can be held
TO have abandoned the portion covered by the
buildings, it should also be held to have
abandoned the balance of the sixty-foot strip
as far as the bunting post.
All the evidence having been introduced in
! this case and the plaintiffs having filed gen
eral motion as well as exceptions, it is the
opinion Of the court that substantial justice
can best be attained by the order that il the
defendant, within sixty days after the filing Of
this decision. shall release TO the plaintiff all
its right title and interest in and 10 al of the
right Of way covered by its location easterly
Of the bunting post now marking the easteriy
terminus Of the defendants line, the excep-
tions and motion shall be overruled, other
wise they shall be sustained.