Carter v. Sullivan

• Decision Date: 05 December 1932
• Citation: 281 Mass. 217
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CAROLINE L. CARTER & others v. CATHERINE SULLIVAN& others.

281 Mass. 217

CAROLINE L. CARTER & others v. CATHERINE SULLIVAN& others.

Supreme Judicial Court of Massachusetts, Suffolk.

December 5, 1932

January 6, 1932.

Present: RUGG, C.

J., CROSBY, WAIT & FIELD, JJ.

Way, Private interference, encroachment.Equity Jurisdiction, To enjoin infringement of easement, Laches.Equity Pleading and Practice, Master: exceptions to report; Appeal; Parties Decree.

In a suit in equity by owners, severally, of parcels of land on one side of a private way five feet wide against the owner of a parcel on the opposite side, to enjoin alleged continuing trespass upon the plaintiffs' rights in the way, no question of misjoinder of partiesplaintiff was made before the entry of a final decree, and, from findings by a master, it appeared that the partiesplaintiff and the defendant had by grant rights in common to "the free use and privilege of" the way "for foot passage and the removal of ashes and garbage," that, subject to such rights, the plaintiffs severally owned one half of the way where their respective premises abutted and that the defendant owned the half upon which his premises abutted.Upon further findings by the master, it was held, that it was proper to enter a final decree,

(1) Adjudging that the defendant had acquired no rights in the "fee and soil" of the passageway "by prescription or adverse use";

(2) Ordering the defendant to remove from the way so much of a fire escape on a building on his land as extended beyond the middle of the way over the plaintiffs' half thereof, although the fire escape when not in use was at least nine feet above the way and extended only one and nine tenths feet beyond the middle of the way and the master found that it did

"not in any way interfere with the use of the passageway for foot travel or for the removal of ashes or garbage": such decree was 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 encroachment was not so slight as to be negligible;

(3) Ordering the removal of a fence erected across the entire way, although a gateway twenty-seven inches wide was left therein: one half of the fence was an encroachment upon the half of the way owned by one of the plaintiffs, and the entire fence, by the narrowing of the space available for use to the width of the gate, was an interference with that plaintiff's right of passage;

(4) Ordering the removal of an encroaching shed of the defendant, it having been found by the master that the defendant had acquired no prescriptive right to maintain it;

(5) Perpetually enjoining the defendant against "trespass upon the rights and property of the plaintiffs in the said passageway."

In the above suit it further was held that the facts, that the plaintiffs for many years had maintained, adjoining their premises and extending into the way from eight and one half to twenty and one half inches, concrete steps which, owing to the level of the plaintiffs' premises as compared with the level of the ground of the way, were "necessary in stepping from the plaintiffs' premises into the passageway and reversely," and which did not materially affect the use of the passageway for foot travel and for the removal of barrels of ashes and garbage nor materially interfere with the rights of passage which the defendant had in the whole width of said passageway, did not call for an application of the maxim that he who seeks equity must do equity, nor prevent the maintenance of the suit.

In the suit above described it appeared that the fire escapes were erected in November, 1929, by the defendant's predecessor in title who had made no attempt to obtain from any of the plaintiffs permission to build said fire escapes; that the defendant obtained title in January, 1930; that one plaintiff, who lived on his land while the fire escapes were being erected, notified a wrong person as to an objection to their erection; that another plaintiff, who lived at a distance, did not know of their erection until about a month before the suit was brought, and that there was no evidence that subsequent to such erection any change had occurred in connection with the premises of the defendant in reliance on any failure of the plaintiffs to bring suit at an earlier date or any change in the relative positions of the parties.The master found that "in so far as it is a question of fact none of the plaintiffs are guilty of laches."Held, that no laches appeared as a matter of law.

A defendant, joined in the suit above described because he was a mortgagee of the defendant's premises, was a proper partydefendant and was not entitled to have the suit dismissed as to him although no injunctive relief was decreed against him.

BILL IN EQUITY, filed in the Superior Court on December 9, 1930, and afterwards amended, described in the opinion.

The suit was referred to a master.Material facts found by the master are stated in the opinion.By order of Donnelly, J., an interlocutory decree was entered confirming the master's report without mention of exceptions thereto filed by the defendant Sullivan; and by order of

Fosdick, J., the final decree described in the opinion was entered.

The defendants Sullivan and Weisberg appealed.

H. Kahn & B.

Beerman, for the defendants Sullivan and another, submitted a brief.

E.S. Macmillan, (M. Wilbur with him,) for the plaintiffs.

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 projected 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), 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, Section 27, the exceptions cannot be considered (Lyons v. Elston,211 Mass. 478 , 482), 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.

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...