Bumpus v. Church
| Decision Date | 01 March 1939 |
| Citation | 302 Mass. 419,19 N.E.2d 716 |
| Parties | BUMPUS v. CHURCH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Action by George W. Bumpus against George F. Church, for injunction against cutting of timber. From an interlocutory decree confirming the master's report and overruling plaintiff's exceptions thereto, and from a final decree for defendants, plaintiff appeals.
Affirmed.Appeal from Superior Court, Plymouth County; J. W. Morton, Judge.
W. B. Perry, Jr. and J. Lipsitt, both of New Bedford, for appellant.
L. L. Dexter, of New Bedford, for appellee.
Each party claims title to woodland where both have cut timber, and each seeks an injunction against further cutting by the other. The decisive question is the location of the boundary line. A master found that the cutting was on the easterly or defendant's side of the line. By an interlocutory decree exceptions of the plaintiff to the master's report were overruled, and the report was confirmed. A final decree was entered, establishing the boundary line, restraining the plaintiff from cutting to the eastward of that line, and ordering the plaintiff to pay damages in the sum of $50 with costs. The plaintiff appealed from both decrees.
The plaintiff complains that, though upon his motion the report was recommitted to the master with directions to report the evidence and make subsidiary findings upon certain matters of fact, the master failed to comply. His complaint appears well founded. But the report after recommittal was confirmed, and this court cannot enforce obedience to the decree of recommittal where the Superior Court did not. Recommittal for such a purpose ‘is discretionary with the court that issued the rule and retained power to modify it by implication as well as expressly.’ Carleton & Hovey Co. v. Burns, 285 Mass. 479, 483, 484, 189 N.E. 612, 614;Spilios v. Papps, 288 Mass. 23, 27, 192 N.E. 155;General Outdoor Advertising Co., Inc., v. Department of Public Works, 289 Mass. 149, 202, 203, 193 N.E. 799;Commonwealth v. Bartolini, Mass., 13 N.E.2d 382.
The plaintiff's exceptions to the master's report fail under the established rule that an exception to a master's report cannot be sustained unless the error is made to appear on the face of the report itself. Zuckernik v. Jordan Marsh Co., 290 Mass. 151, 155, 194 N.E. 892;Morin v. Clark, Mass., 6 N.E.2d 830. The evidence is not reported. The conclusions of the master do not purport to be based only upon...
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