Centebar v. Selectmen of Watertown

• Decision Date: 29 June 1929
• Citation: 268 Mass. 121,167 N.E. 303
• Parties: CENTEBAR v. SELECTMEN OF WATERTOWN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 121

167 N.E. 303

CENTEBAR

v.SELECTMEN OF WATERTOWN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 29, 1929.

Appeal from Superior Court, Middlesex County; Franklin T. Hammond, Judge.

Suit by Charles H. Centebar against the Selectmen of Watertown and others to enjoin defendants from erecting a fire-alarm cable box in a certain location in the public sidewalk which adjoins plaintiff's real estate.From a decree dismissing the bill, complainant appeals.Affirmed.

Wycliffe C. Marshall, of Waverley, for plaintiff.

James M. Oates, Town Counsel, of Watertown, for defendants.

FIELD, J.

The plaintiff, an owner of real estate on Main street in Watertown, seeks by this bill in equity brought in the Superior Court to enjoin the defendants, the selectmen and the inspector of poles and wires of that town, from erecting a fire-alarm cable box in a certain location in the public sidewalk which adjoins the plaintiff's real estate.The case was referred to a master.¹The trial judge entered an interlocutory decree overruling the plaintiff's exceptions to the master's report and confirming it, and a final decree dismissing the bill with costs.The plaintiff did not appeal from the interlocutory decree within the time fixed therefor by statuteG. L. c. 214, §§ 26, 19.He appealed from the final decree seasonably.

We are of opinion that the plaintiff's exceptions to the master's report cannot be considered under G. L. c. 214, § 27, as it does not appear to us that the final decree is erroneously affected by the interlocutory decree overruling the exceptions and confirming the report.Fay v. Corbett, 233 Mass. 403, 409, 410, 124 N. E. 73;Ledoux v. Lariviere, 261 Mass. 242, 158 N. E. 779.

Among the facts found by the master are the following: The town ‘is installing a new fire-alarm and signal system, which is underground.* * * The fire-alarm cable boxes are being installed along Main Street * * * as an essential part of the new system.’The plaintiff's land is occupied by a building, having a frontage of about forty-two feet, containing two tenements and two stores.The entrance to the tenements is in the center, and an entrance to a store at each end, of the front of the building.In front of the building there is a sidewalk about twelve feet wide of which two feet in width are on the plaintiff's land.The defendants propose to erect a cable box at the outer edge of the sidewalk just at one side of the entrance to the tenements.It ‘is 6 feet in height, measures about 6 inches in diameter at the base for a height of about 4 feet and then measures about 6 inches by 11 inches for 2 feet more.’

The rights of the public in the highway, including the sidewalk, in front of the plaintiff's premises, include the right to lay therein the cable of a fire-alarm signal system and to erect, equip and maintain therein the cable boxes incidental thereto.Even if the public right in the highway is an easement only, the erection of such a fire-alarm signal system is not an additional servitude.SeePierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7;New England Telephone & Telegraph Co. v. Boston Terminal Co., 182 Mass. 397, 399, 65 N. E. 835;Commonwealth v. Morrison, 197 Mass. 199, 203–205, 83 N. E. 415,14 L. R. A. (N. S.) 194, 125 Am. St. Rep. 338, and cases cited;Crullen v. Edison Electric Illuminating Co. of Boston, 254 Mass. 93, 94, 149 N. E. 665.See, also, Pettingell v. Chelsea, 161 Mass. 368, 37 N. E. 380,24 L. R. A. 426;Postal Telegraph Cable Co. of Massachusetts v. Chicopee, 207 Mass. 341, 93 N. E. 927,32 L. R. A. (N. S.) 997.

The plaintiff does not question the existence of the public right as herein defined, but he contends that the exercise of it in the manner proposed will interfere with access to and from the public way from and to his premises.Undoubtedly a right of access to and from the public way is an incident of his ownership of this land.Anzalone v. Metropolitan District Commission, 257 Mass. 32, 36, 153 N. E. 325, 47 A. L. R. 897.In this respect his right is different in kind from the rights of the public generally.

As to the effect of the proposed erection of a cable box on access the master found that the ‘access to the plaintiff's property and the highway will not be rendered different or dangerous or impaired or interfered with in any substantial degree.’He found also that it ‘will be convenient for the plaintiff, his tenants and customers, to park automobiles on the highway at or near the curbstone’ and that the ‘sidewalk will not be less commodious or convenient.’These findings of fact are consistent with the master's findings as to the size and location proposed for the cable box.

[6] Obviously the proposed cable box will not interfere at all with passage between the sidewalk and the plainiff's premises.The easement of access...