Arcisz v. Pietrowski

• Decision Date: 28 June 1929
• Citation: 167 N.E. 298,268 Mass. 140
• Parties: ARCISZ v. PIETROWSKI et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 140

167 N.E. 298

ARCISZ

v.PIETROWSKI et al.

Supreme Judicial Court of Massachusetts, Essex.

June 28, 1929.

Report from Superior Court, Essex County; P. M. Keating, Judge.

Bill in equity by Laura Arcisz against John Pietrowski and others. Decree was rendered in accordance with certain prayers of the bill, and the case was reported by a judge of the superior court on the pleadings, the master's report as amended, supplemental report, interlocutory decree confirming reports, and exceptions and order for final decree. Order for final decree corrected, and decree entered in accordance with opinion.

T. A. Henry, of Salem, for plaintiff.

J. J. Ronan and A. S. Bachorowski, both of Salem, for defendants.

CROSBY, J.

This is a bill in equity brought to enjoin the defendants from obstructing a right of way twelve feet wide, running from Webb street, in Salem, to the northerly side of the rear land of the plaintiff. The defendants are the owners in fee of a parcel of land on the westerly side of the way. The case was referred to a master who made certain findings of fact, and on recommittal to him, found that the defendants and their predecessors in title ‘have steadfastly denied that the owners or occupants of the plaintiff's house have any rights in and to the way, and * * * this denial has been acquiesced in by plaintiff and her predecessors in title. This period of abandonment and of repudiation, however, has been of many years' duration and since its beginning, has been complete and uninterrupted. It has not continued for a full period of twenty years prior to the filing of the plaintiff's bill, but had continued for at least seventeen years, and possibly for nineteen years.’

A judge of the superior court sustained one objection to the report, overruled the remaining exceptions, ordered that a final decree be entered in accordance with the prayers of the bill Nos. 2, 3, 4 and 6, and reported the case to this court upon the pleadings, the master's report as amended, the supplemental report, the interlocutory decree confirming the reports and the exceptions and order for a final decree, the parties having agreed that if the trial judge was warranted in ordering a final decree to be entered as ordered, such decree is to be entered; otherwise a final decree is to be entered dismissing the bill with costs. It does not appear from the bill that it contains a prayer numbered 6.

As the evidence is not reported, this court draws its own inferences from the facts found, and is in this respect in the position of the trial judge. Adams v. Whitmore, 245 Mass. 65, 67, 68, 139 N. E. 831;Peirce v. Moison, 256 Mass. 528, 530, 152 N. E. 749;Cohen v. Bailly (Mass.) 165 N. E. 7. As all the facts have been found by the master this court has the right to draw additional or different inferences of fact from the facts found. Anagnosti v. Almy, 252 Mass. 492, 500, 147 N. E. 854.

The master made the following and other findings: On June 22, 1860, John Saul conveyed to Thomas Maroney the parcel now owned by the defendants. The description in this deed is as follows: ‘Bounded * * * fifty feet by a private way of twelve feet in width, which extends southwesterly from Webb Street together with the right to use said way in common with the other owners and abutters thereon.’ By various mesne conveyances in each of which the same words were used the title on July 11, 1901, became vested in Albert and Mary (then known as Maryjanna) Smerczynski, husband and wife, and by mesne conveyances the land now owned by the defendants came to Mary Smerczynski, the widow of Albert, her deed being dated June 24, 1910. In the deed to her the description contained the following: ‘Easterly by a private way twelve feet wide which runs southerly from Webb Street in said Salem about sixty-two feet. * * *’ ‘No mention was made in any of these deeds of any rights of way, except such as may be implied from the bounding description. On August 7, 1926, Maryjanna Smerczynski conveyed the house and land to the respondents by a description identical with that contained in the deed to herself, and also omitting any specific mention of any right of way.’ Lot No. 3, the land of the plaintiff abutting on the way, is described in part as follows: ‘A certain parcel of land * * * bounded northeasterly by land of Maroney by the Southerly end of a twelve foot way and by land now of formerly of Waters.’ This land on April 23, 1896, was conveyed by Mary L. Hill, the daughter of John Saul, to whom it was set off in partition proceedings ‘Together with all our right, title and interest in said way above mentioned.’ ‘There were many conveyances of this parcel from that date until the plaintiff acquired title, and in every deed, including the plaintiff's, the same description was used and the same sentence appeared with reference to the seller's ‘right, title and interest in said way.’ The plaintiff acquired title on December 4, 1922, and moved into the northerly side of the house shortly afterward.'

At the southerly end of the way at the plaintiff's land there is an old fence running across the entire way. Until two or three years ago, the way was unobstructed from the plaintiff's fence to Webb street, but at that time the defendants raised their house and built front steps into the way so that at that point the way is now only eight feet and seven inches wide. The plaintiff desires to build a garage in her rear yard, but without the right to use the way her rear yard is inaccessible from any street for automobiles or wagons. The way is well defined with a plank walk on its westerly side for the use of pedestrians. There are no openings into it from any of the abutting properties, including the plaintiff's, and on the surface it would appear to be for the exclusive use of the defendants' land if not actually an integral part of that land.

The master further found that when the twelve-foot way was first referred to by deed of June 22, 1860, it was already in existence and defined; that at the date of the deed the grantor, John Saul, owned the entire way; that the plaintiff's house was erected before 1860, and at that time the way was intended for the use of the owner of the land now owned by the plaintiff and such portion of Lot No. 4 as abutted on the way, and had been laid out for that purpose. In 1901 ‘the fence on what is now the plaintiff's land, at the end of the way, was standing as now, and no gate was apparent to the members of the Smerczynski family.’ There is no credible evidence indicating any use of a gate from this land now owned by the plaintiff into the way, although in his first report the master found that a gate was there originally and continued there for many years, but that it ‘has not been used as a gate for more than twenty years prior to the filing’ of the bill. In his...