Albana v. Puopolo

Decision Date08 September 1941
Citation36 N.E.2d 398,309 Mass. 501
PartiesALBANA et al. v. PUOPOLO et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Bill in equity by Frank Albana and others against Angelo Puopolo and others to restrain defendants from interfering with alleged rights of plaintiffs in the use of a passageway described in a deed to plaintiffs. From interlocutory decree, overruling defendants' exceptions to master's report, and from final decree in favor of plaintiffs, defendants appeal.

Decree in accordance with opinion.Appeal from Superior Court, Suffolk County; Warner, Judge.

Argued before FIELD, C. J., and QUA, DOLAN, and COX, JJ.

S. R. Wrightington and M. I. Connolly, both of Boston, for defendants.

No argument or brief for plaintiff.

COX, Justice.

This is a bill in equity seeking to restrain the defendants from interfering with the alleged rights of the plaintiffs in the use of a passageway described in a deed to the plaintiffs. The bill alleges that this passageway, two and one half feet wide, leading from the plaintiffs' premises, is in the rear of the premises claimed to be owned by the defendant and leads ‘to a larger passageway’; that the plaintiffs' right to the use of the passageway is a matter of record, as set forth in a plan dated May 14, 1887, and recorded with the registry of deeds. The suit was referred to a master, whose report was confirmed by interlocutory decree in which the defendants' exceptions were overruled. The trial judge filed a ‘Memorandum and Order for Decree,’ and a final decree was entered affording the plaintiffs relief against all defendants. The defendants appealed from both decrees.

From the master's report it appears that the premises are located at numbers 18 and 20 Cooper Street in Boston. The defendants' parcel, so called, hereinafter referred to as lot 18, is bounded on the east by a passageway, fronts on Cooper Street and is bounded on the west by the plaintiffs' parcel, hereinafter referred to as lot 20. By deed dated and recorded on May 10, 1887, lot 18 was conveyed to one Baker. No evidence of the record title of either lot prior to this date was introduced. The deed contained no reference to any plan, nor to any two-and-one-half-foot passageway. By deed dated May 16, 1887, said Baker conveyed lot 18 to one Connolly. Reference therein was made to the deed of May 10, 1887, and the conveyance was ‘subject to the right of the owners of * * * [lot 20] to pass and repass over and drain under the passageway 2.50 feet wide across the Southerly end of the described premises. * * * The grantee her heirs and assigns may arch over said passageway 2.50 feet wide leaving the same eight (8) feet high from its present surface to the top of such arch or however otherwise bounded, measured or described. * * *’ The plan therein referred to is dated May 14, 1887, and shows a passageway at the southerly end of lot 18 marked ‘passageway 2 1/2 feet wide to No. 20.’ By deed dated May 25, 1887, lot 20, ‘as shown on * * * [said] plan,’ was conveyed to the said Baker, together ‘with a right of way in the passageway two and one-half (2 1/2) feet wide across the rear of * * * [lot 18] as shown on said plan. * * *’ Baker conveyed lot 20 on June 16, 1887, together ‘With a right of way in the passageway two and one-half * * * feet wide across the rear of * * * [lot 18] as shown on said plan,’ and by mesne conveyances said lot 20 was eventually conveyed to the plaintiffs ‘with the right of way * * * as shown on said plan.’ In several mesne conveyances of lot 20 there are similar recitals, in substance, that each is made with the right of way as shown on said plan.

In the several mesne conveyances of lot 18, including that to the defendants' father, from whom they derive title, there are recitals similar in every material respect to those contained in the deed from Baker to Connolly, that is, that lot 18 is subject to the rights of the owners of lot 20 in the passageway therein described. The defendants' father owned lot 18 until his death in 1933, and his children, the defendants, continued to own it as tenants in common until June, 1939, when Angelo, Lucy (Lucia), Nicholas (Nicola) and Amelio (Milio) conveyed their interests in said lot 18 to the other four children. In their deed and in a mortgage thereafter by the grantees it is stated, in effect, that the conveyances are subject to the right of the owner of lot 20 in the passageway. The four children who conveyed, as aforesaid, had no title or interest in lot 18 at the time the bill in equity was filed on October 16, 1939.

In 1887, when lot 18 was purchased by Connolly, the building on it, which covered its entire frontage, had a wooden ell in the rear, not more than one third as wide as the main building, which extended to the rear of the lot along the boundary of lot 20. Along the rear or southerly end of lot 18 there was a dark passageway at least two and one half feet wide, to which there was access from lot 20, ‘there was an opening there.’ This passageway led to a wider, open one that extended along the easterly line of lot 18 to Cooper Street, and at this end of the dark passageway there was a door with a latch on the inside. The remainder of the rear part of lot 18 was an open yard covered with brick, with a fence along the wider, open passageway. At that time there was a similar building on lot 20 except that it did not cover the entire frontage, there being an open passageway three or four feet wide between the building and the adjoining lot to the west. The building now on lot 20 was constructed in 1893 and covers the entire frontage. The building on lot 18 was constructed in 1896-1897 and covers the entire lot, but there is still, as a definite physical fact, ‘a passageway along and across the rear and most southerly end of * * * [lot 18] at least two and one-half feet wide, in the same place and very much the same as it was in 1887 when * * * [said] Connolly first made her home’ there, except that at the present time, it is covered over by the brick building that was built in 1896-1897 and is contained within that building. The height from the surface of the ground to the roof of said passageway is about eight feet. There are walls or partitions on each side, and in the northerly wall there is a door leading down into the cellar of the building, the said passageway being on a distinctly higher level than the cellar. At the end of the passageway nearest to lot 20 there is a door leading to an area, ‘in the nature of an air-shaft,’ five to six feet square and all upon lot 18. On the opposite side of the air shaft there is a door at the boundary line of lot 20 leading into the premises there. At the other end of the passageway there are four or five steps leading to a door which opens on the wider, open passageway leading to Cooper Street.

In the deed from Baker to Connolly, the southerly bound is ‘on the Northerly face of a brick wall standing on other land of said Baker,’ and the westerly bound is ‘by Estate No. 20 Cooper Street as shown on said plan by a line through the middle of the brick partition wall.’ The plan shows double lines beginning at Cooper Street and extending south about one half the length of the lots, with the notation, ‘Center of Wall.’ Continuous double lines are shown at the south line of both lots, with the notation above the line nearest the lots, ‘Face of Wall.’

From at least 1919 until the death of the defendants' father, the passageway in question was ‘continuously used from time to time under a claim of right by the owner or owners of * * * [lot 20] and their tenants' for purposes of travel and removal of things, ‘subject expressly, however, to the door at the end of said passageway nearest * * * [lot 20] being kept closed on the inside by a wooden button or peg as of right by the owner or owners of * * * [lot 18] and to the door at the other end of said passageway leading out into said wider, open passageway being kept locked with an ordinary lock and key as of right by the owner or owners of * * * [lot 18], with reasonable access to and right to use said key, or any duplicate or duplicates thereof, at all reasonable times on the part of the owner or owners * * * of * * * [lot 20] for the purposes of passing, repassing and carrying or taking things in and out as aforesaid * * *.’

The master further found that for a period of more than twenty years prior to the death of the defendants' father in 1933, this passageway ‘except when being used for passing and repassing thereon, was kept closed and locked from the inside by a door with a button or peg at the end nearest to * * * [lot 20] and on the other side by a door with a lock and key by the owner or owners from time to time of * * * [lot 18], and that such closing and locking was not permissive on the part of the owner or owners for the time being of * * * [lot 20] but adverse to them.’

From the facts found as to the physical condition of the premises beginning in 1887, the use made of the passageway from ‘at least 1919 and its being kept closed, all as hereinbefore described, the master inferred that for a period ‘long prior to 1919, and at least for more than 20 years prior to 1933, it had been continuously used from time to time under a claim of right’ by the owners of lot 20 and their tenants for the purposes hereinbefore stated, and subject to its doors being kept closed and fastened, all as hereinbefore set out.

Shortly after the death of the defendants' father, the plaintiffs were refused access to the passageway by the defendants. The doors have been kept locked and barred, but the plaintiffs have not abandoned the passageway or any of their rights therein, and have not pressed the matter further before the bringing of the bill in order to ‘avoid any altercation over the same.’ The master was unable to determine what damage, if any, the plaintiffs had sustained. There is no report of any evidence.

The trial judge ruled that...

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5 cases
  • Tamburello v. Monahan
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 10, 1947
    ... ... 203 Mass. 448 , 452; Cohen v ... Bailly, 266 Mass. 39 , 48; Fortier v. H. P. Hood & ... Sons, Inc. 307 Mass. 292, 300-301; Albano v ... Puopolo, 309 Mass. 501 , 509-510; Ferrone v ... Rossi, 311 Mass. 591 , 595; and Goldstein v ... Beal, 317 Mass. 750 , 759-760 ... [321 Mass. 449] ... ...
  • Tamburello v. Monahan
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 10, 1947
    ...v. Bailly, 266 Mass. 39, 48, 165 N.E. 7;Fortier v. H. P. Hood & Sons, Inc., 307 Mass. 292, 300, 301, 30 N.E.2d 253;Albano v. Puopolo, 309 Mass. 501, 509, 510, 36 N.E.2d 398;Ferrone v. Rossi, 311 Mass. 591, 595, 42 N.E.2d 564; and Goldstein v. Beal, 317 Mass. 750, 759, 760, 59 N.E.2d 712. Th......
  • Tompkins v. Sullivan
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 8, 1941
  • Albana v. Puopolo
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 8, 1941
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