Carter v. Sullivan

• Decision Date: 05 December 1932
• Citation: 281 Mass. 217,183 N.E. 343
• Parties: CARTER et al. v. SULLIVAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 217

183 N.E. 343

CARTER et al.

v.SULLIVAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 5, 1932.

Appeal from Superior Court, Suffolk County; Donnelly, Judge.

Suit by Caroline L. Carter and others against Catherine Sullivan and others.From a final decree in favor of the plaintiffs, the defendants Sullivan and Weisberg appeal.

Decree affirmed.

E. S. Macmillan, of Boston, and M. Wilbur, of Brockton, for appellants.

Henry Kahn and Bernard Beerman, both of Boston, for appellees.

FIELD, J.

This is a bill in equity to compel the removal of certain structures from a passageway and to enjoin the defendants from ‘continuing to trespass upon the rights and property of the plaintiffs' therein.The plaintiffs are the owners of three parcels of land with the buildings thereon on Joy street in the city of Boston in the rear of which is a passageway five feet wide running south from Myrtle street.(The plaintiff Carter owns the most southerly parcel.)The defendant Sullivan is the owner, the defendant Goldberg was the previous owner, and the defendants Weisberg and the Warren Institution for Savings are mortgagees, of a parcel of land with a building thereon on the other side of the passageway.The case was referred to a master whose report was confirmed by an interlocutory decree.The evidence was not reported.Thereafter a final decree was entered dismissing the bill against the defendant Goldberg; adjudging that the plaintiffs own the fee in the passageway east of its middle line where their respective premises abut thereon, and that the defendant Sullivan and her predecessors in title have acquired no rights by prescription or adverse use in the passageway; perpetually enjoining the defendants from ‘trespass upon the rights and property of the plaintiffs in the said passageway,’ and ordering the defendant Sullivan to remove from the passageway so much of the fire escapes attached to her building as projects over the middle line thereof, and also to remove from the passageway for its entire width a fence which crosses the passageway where it abuts the premises of the plaintiff Carter and the part of a shed located in the passageway where it abuts her premises between those premises and the westerly line of the passageway projecting southerly.The defendants Sullivan and Weisberg appealed from the final decree.

Since there was no appeal from the interlocutory decree confirming the master's report and inferentially overruling the exceptions thereto (Robinson v. Pero, 272 Mass. 482, 484, 172 N. E. 599), and since it does not appear that the final decree was erroneously affected thereby so as to require revision under G. L. (Ter. Ed.)c. 214, § 27, the exceptions cannot be considered (Lyons v. Elston, 211 Mass. 478, 482, 98 N. E. 93), and the question for decision is whether the final decree is within the scope of the bill and supported by the facts found (Hermanson v. Seppala, 272 Mass. 197, 199, 172 N. E. 87).

First.The defendant Sullivan, herein referred to as the defendant, does not contend that the decree falls outside the scope of the bill.She contends, however, that the plaintiffs are not entitled to the decree because she has acquired a right ‘by prescription’ to maintain the shed, the fire escapes do not extend over the land of the plaintiff Carter, and the fence and the fire escapes do not interfere with the use of the passageway by the plaintiffs, and because relief in equity is barred by the plaintiffs' encroachments upon the passageway by making concrete steps therein in the rear of their premises respectively and by their laches.The defendant contends also that if the bill can be maintained she is entitled to the affirmative relief of an order that the plaintiffs remove the steps from the passageway.

1.The decree so far as it determines the rights of the parties in the passageway is supported by the facts found.There is no contention by any party that the subsidiary findings are inconsistent with the conclusions that the plaintiffs and the defendant have by grant rights in common in the five-foot passageway for foot passage and the removal of ashes and garbage, and that, subject to these rights, the plaintiffs own the east half of the passageway where it abuts their premises respectively-unless the defendant and her predecessors in title have acquired by their use a right therein where the shed stands-and the defendant owns the west half of the passageway where it abuts her premises.The shed, which is forty-two inches wide, ten feet long and seventy-four inches high, extends across the southerly end of the passageway westerly from the premises of the plaintiff Carter.The master's finding that the defendant and her predecessors in title acquired no rights in the ‘fee and soil’ of the passageway ‘by prescription or adverse use’ applies to the part of the passageway covered by the shed.It is based upon the evidence, not solely upon subsidiary findings, and must stand since it is not inconsistent with such findings and plainly wrong.Davenport v. King, 273 Mass. 31, 34, 172 N. E. 878.The findings, relied on by the defendant, in regard to a small shed in a somewhat different location-according to the testimony as stated in the report erected by the persons who owned the defendant's premises in 1910-are too indefinite to require us to reach a different conclusion.

[4] 2.The plaintiffs Tapp and Goldthwaite, unless barred by their own conduct, are entitled to an order for the removal of so much of the fire escapes as projects beyond the middle of the passageway.

The fire escapes are opposite the premises of these plaintiffs.They consist of an iron balcony at each of the four upper floors of the defendant's building and ladders from balcony to balcony and from the lowest balcony to the ground.The balconies extend two and one half feet and the ladders, outside of them, one and nine tenths feet over the passageway, so that these fire escapes to the width of the ladders extend beyond the middle of the passageway and, consequently, over land owned by the plaintiffs.The ladder from the lowest balcony to the ground, when not in use, is at least nine feet above the passageway.The master found that ‘the fire escapes do not in any way interfere with the use of the passageway for foot travel or for the removal of ashes or garbage,’ but that the properties of these plaintiffs‘have been injuriously affected by the erection and maintenance of such steps or ladders, that they constitute an obstruction and encroachment of a permanent or constantly recurring character so that damages would not afford adequate relief, that such obstructions interfere with the free use and enjoyment of their property and may interfere with the future use of the same and that they constitute a trespass on the property of these plaintiffs.’

No subsidiary finding is inconsistent with this conclusion.The decree on this branch of the case, therefore, is based, not upon interference by the defendant with the plaintiffs' rights of passage, but upon an encroachment on the portion of the passageway owned by the plaintiffs, and the order for the removal of the fire escapes is limited properly to the part thereof which extends over that portion of the passageway.So limited it is supported by the facts found though there is no interference with rights of passage.Harrington v. McCarthy, 169 Mass. 492, 494, 48 N. E. 278,61 Am. St. Rep. 298;Szathmary v. Boston & Albany Railroad, 214 Mass. 42, 45, 100 N. E. 1107;Zimmerman v. Finkelstein, 230 Mass. 17, 119 N. E. 194;Tyler v. City of Haverhill, 272 Mass. 313, 172 N. E. 342.The encroachment upon the plaintiffs' land is not so slight as to be negligible.SeeHarrington v. McCarthy, 169 Mass. 492, 494, 495, 48 N. E. 278,61 Am. St. Rep. 298.Nor is it justified as the result of an innocent mistake or a bona fide claim of right by the defendant's predecessor in title, who built the fire escapes.According to the master's finding he‘apparently went ahead without regard to any possible rights of the plaintiffs in any part of the passageway.’SeeSzathmary v. Boston & Albany Railroad Co., 214 Mass. 42, 44, 45, 100 N. E. 1107;Tyler v. City of Haverhill, 272 Mass. 313, 172 N. E. 342.

Since, as the master found, ‘No part of the fire escapes is opposite the premises of the plaintiff Carter’ and her rights of passage are not interfered with by them she is not entitled to any relief with respect to the fire escapes.But no such relief was granted to her specifically and the objection to the decree on this point is merely to a misjoinder of partiesplaintiff.The record does not show that this objection was taken seasonably.Stevens v. Rockport Granite Co., 216 Mass. 486, 493, 104 N. E. 371, Ann. Cas. 1915B, 1054;Yaskill v. Thibault, 273 Mass. 266, 268, 173 N. E. 504.Whether if it had been taken seasonably it would have been valid in the circumstances of this casewe need not inquire.

[6] 3.The plaintiff Carter, unless barred by her own conduct, is entitled to an order for the removal of the fence from the entire width of the passageway.

This fence-five feet in length and seven feet in height-extends across the passageway from this plaintiff's premises to the defendant's building and contains a gate twenty-seven inches wide.One half the fence is on the part of the passageway owned by this plaintiff.An order for the removal of this half of the fence could be sustained on the principles applicable to the fire escapes.

But the master found further that ‘the fence and gate * * * constitute an obstruction to the rights of passage which the plaintiff Carter now has in the whole width of said passageway.’This finding is consistent with the other findings.Nothing in the record requires the conclusion, and the defendant does not argue, that this plaintiff's rights of passage do not extend into the area back of the fence, but she contends rather that the fence, because of...