The judge of the Land Court found that the easement which otherwise wouldhavebeen vested in the respondent had been abandoned, and in our opinion there was evidence which warranted this finding. Westcott v. New York & New England Railroad, 152 Mass. 465. Bicknell v. New York & New England Railroad, 161 Mass. 428. New York, New Haven, & Hartford Railroad v. Benedict, 169 Mass. 262, 267. This made the respondent’s first, second, third, fourth, fifth, ninth, tenth and eleventh requests for rulings immaterial. Its sixth and eighth requests were properly refused. St. 1906, c. 463, Part II, § 80, does not apply to a case like this, where the owner of the fee, subject to an easement in favor of the respondent, has continuously and openly used and occupied the land as his own to the exclusion of the respondent and with its knowledge and acquiescence. See Harding v. Biggs, 172 Mass. 590, 593, 594; Hall v. Boston & Maine Railroad, 211 Mass. 174. It is not a question of the acquirement of rights in the land of a railroad company by an owner or occupier of adjoining land. Its twelfth request was given. The seventh request dealt only with a single one of the facts in evidence and need not have been given.
The petitioners were allowed to show that they and their predecessors in title had paid the taxes on this strip of land since 1855. We cannot say that this was wrong. Enfield v. Woods, post, 547. It tended to show the nature and extent of their claim, and that they had availed themselves of the abandonment which was claimed. Evidence that there had been no petition for damages for the taking of this strip was competent. That the easement never had been paid for made the inference of its abandonment easier to draw. As to this question, it was the converse of Hummel v. Cumberland Valley Railroad, 175 Penn. St. 537, 539, and Canton Co. v. Baltimore & Ohio Railroad, 99 Md. 202.
Evidence as to the location and character of the fence and the time of its existence was competent. It was a reasonable inference that it had been erected by the respondent’s predecessor, or with its *425consent, and adopted by the respondent as the boundary of the land over which it claimed and exercised an easement. And evidence that it was the continuation of a fence beyond the petitioners’ land tended to strengthen this inference. In this respect the case of Smith v. New York & New England Railroad, 163 Mass. 569, is different.
The evidence as to the use of this strip for an orchard and garden and for the erection of a shed was plainly competent.
But we see no ground for the admission of the testimony as to what was shown-by the city engineer’s plans. Smith v. New York & New England Railroad, 163 Mass. 569, 573. They were not ancient plans; they were not shown to have been made in the performance of any duty required by law; they were in no way connected with the respondent. They simply showed the unsworn statement as to a material question made out of court by a third person who was not shown to be deceased. The admission of this testimony was excepted to. It seems to have been considered by the judge, and may have turned the scale in favor of the petitioners. He said that he gave very little weight to some other evidence the admission of which was excepted to; but he made no similar statement as to this.
This evidence was wrongly admitted, and the entry must be
Exceptions sustained.