Beaudoin v. Sinodinos

• Decision Date: 01 April 1943
• Citation: 48 N.E.2d 19,313 Mass. 511
• Parties: BEAUDOIN v. SINODINOS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 511

48 N.E.2d 19

BEAUDOIN

v.SINODINOS et al.

Supreme Judicial Court of Massachusetts, Hampden.

April 1, 1943.

Bill in equity by Marie Louise Beaudoin against John Sinodinos and others to compel removal of a portion of a structure allegedly interfering with plaintiff's right of way and for other relief. From a decree for plaintiff, defendant Sinodinos appeals.

Affirmed.Appeal from Superior Court, Hampden County; Donnelly, Judge.

Before FIELD, C. J., and QUA, DOLAN, COX, and RONAN, JJ.

A. R. Simpson, C. R. Clason, and G. J. Callahan, of Springfield, for plaintiff.

J. A. Nowak, of Chicopee, for defendant Sinodinos.

DOLAN, Justice.

This is a bill in equity brought against the defendants John Sinodinos, the Chicopee Falls Savings Bank, and The Great Atlantic and Pacific Tea Company, by which the plaintiff seeks to compel the defendant Sinodinos to remove from certain land over which the plaintiff claims a right of way, a portion of a structure alleged to have been erected thereon by Sinodinos, and also prays for certain relief against the defendant The Great Atlantic and Pacific Tea Company. The evidence is reported and the trial judge filed a statement of ‘Findings, Rulings and Order for Decree,’ and a final decree was entered by another judge of the Superior Court, dismissing the bill as to the defendant Chicopee Falls Savings Bank, commanding the defendant Sinodinos to remove from the parcel of land in question ‘the building as is therein constructed,’ and permanently enjoining the defendants Sinodinos and The Great Atlantic and Pacific Tea Company from interfering with the plaintiff's use of ‘Parcel Three as described in said Bill of Complaint, in accordance with the grants of rights of way.’ Sinodinos alone appealed. He will be referred to hereinafter as the defendant.

Since the evidence is reported it is the duty of this court to decide the case upon its own judgment of the evidence, giving due weight to the findings of the trial judge, which will not be reversed unless plainly wrong. Tuells v. Flint, 283 Mass. 106, 108, 109, 186 N.E. 222;Blair's Foodland, Inc., v. Shuman's Foodland, Inc., 311 Mass. 172, 174, 40 N.E.2d 303, and cases cited.

The following facts are disclosed by the evidence: The plaintiff is the owner of record of a lot of land on Main Street, in Chicopee Falls, which was conveyed to her by the Socony-Vacuum Oil Company, Incorporated, by deed dated May 7, 1940. The defendant is the owner of record of a parcel of land adjoining in part the plaintiff's parcel. The defendant acquired title to his premises by quitclaim deed from the Chicopee Falls Savings Bank, dated August 10, 1939. The plaintiff's and the defendant's parcels were formerly owned by one Enright. By deed dated May 1, 1923, the heirs of Enright conveyed to one Desplaines the parcel of land to which the defendant now holds title, reserving ‘to themselves and their heirs and assigns as appurtenant to their remaining land not hereby conveyed, the right to use for all purposes of a passageway in common with the grantee and those claiming under him so much of the above described premises as is described as follows:’ Then follows a description by metes and bounds of a certain portion of the tract now owned by the defendant over which the plaintiff claims the right of way. That portion of the tract will be referred to hereinafter as the third parcel, that being the manner in which it is designated in conveyances now to be referred to. By deed dated April 21, 1924, the Enrights conveyed to Michael Lynch the parcel of land now owned by the plaintiff and, in that conveyance under ‘Third Parcel,’ conveyed to Lynch also all their right, title and interest in that portion of the tract in question, describing it by metes and bounds. Lynch conveyed the premises by deed dated August 2, 1926, to the Standard Oil Company of New York (later the Socony-Vacuum Oil Company, Incorporated), wherein, as to the third parcel, he conveyed ‘all right, title and interest of the Grantor in and to a right of way in land now or lately by Desplaines, described as follows:’ The description was that of the third parcel by metes and bounds. In the deed of the Socony-Vacuum Oil Company, Incorporated, to the plaintiff conveyance was also made as follows: ‘Third Parcel All the right, title and interest of the Grantor in and to a right of way in land now or lately by Desplaines described as follows:’ The description is that of the third parcel by metes and bounds, all the premises conveyed being described as derived by the grantor from Lynch in 1926. The deed to the defendant from the Chicopee Falls Savings Bank, which had acquired the property in question by foreclosure of mortgage, referred to the deed from the Enrights to Desplaines, and set forth that the grant to the defendant included ‘all rights of way and other easements appurtenant to the premises above described and subject to all rights of way and other easements set forth in said deeds and in the deeds therein referred to.’ Those deeds described the third parcel by metes and bounds.

When the plaintiff acquired her title on May 7, 1940, there was a brick building on land of the defendant abutting upon the third parcel. In May of 1940, the building was leased to The Great Atlantic and Pacific Tea Company, and by agreement with it the defendant employed one Ducharme, a mason, to build two brick extensions to the buildings, one of which encroached upon the third parcel and is the structure complained of by the plaintiff. The extension in question is eight by eighteen feet in dimensions and is located on the third parcel. No complaint is made by the plaintiff as to the other extension of the defendant's building, since it does not encroach upon the right of way. There was evidence that, during the course of construction of the extensions in question, steel girders and other building materials were placed on the plaintiff's property (vacant land), and that her counsel wrote to the defendant on May 27, 1940, notifying him to remove them and not to use her premises for any purpose. No reference was made in this letter to her right of way, and no further communication was had by her with the defendant prior to the bringing of the present suit on July 30, 1940. The testimony was conflicting with respect to whether work had been started on the encroaching structure when the letter,above referred to, was sent to the defendant. The plaintiff testified that at that time the construction of the structure complained of had not been begun, but there was evidence tending to show that on that date the outside of that structure had been completed. There was evidence that, before the work on the structure in question began, there had been loading platforms, stairways and hatchways extending some four or five feet into the third parcel but this was permissible under the terms of the conveyance by the Enrights.

There was evidence that a gasoline and service station had been operated formerly on the plaintiff's land, and that trucks had made use of the right of way over the third parcel, but seldom over that portion where the structure complained of stands. The evidence was conflicting as to the value of the plaintiff's land both with and without the structure in question. The plaintiff testified that she intended to erect stores and apartments on her land, and that the structure in question would block off the rearentraces to one of the stores and apartments in the proposed building. The judge found that, although the plaintiff was not making any present valuable use of the right of way, it was a valuable adjunct and might well constitute a valuable selling point in connection with possible uses to which the plaintiff's property might be put.

The judge stated in his findings that the plaintiff had a right of way over the...