Crowley v. J. C. Ryan Const., Inc.
| Citation | 356 Mass. 31,247 N.E.2d 714 |
| Parties | John A. CROWLEY et al. 1 v. J. C. RYAN CONSTRUCTION, INC. |
| Decision Date | 08 May 1969 |
| Court | United States State Supreme Judicial Court of Massachusetts |
John P. Ford, Lawrence, for defendant.
Raymond M. Sullivan, Lawrence, for plaintiffs.
Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, and KIRK, JJ.
The case is before us on the appeals of the defendant J. C. Ryan Construction, Inc. (Ryan) from an interlocutory decree overruling exceptions to and confirming the master's report, from the final decree, and from an order of a judge denying a motion to strike a paper discussed later in this opinion.
The Crowleys sought and were granted a mandatory injunction to compel Ryan to lower the grade of Crestshire Drive, a private way, as it abuts their land and dwelling (parcel 11) in Lawrence and to remove the curbing constructed around parcel 11. There was also a claim for an award of damages.
We summarize the findings of the master as augmented by undisputed facts of record. In November, 1962, the Crowleys bought parcel 11 from a grantor who had built on several lots which were laid out on a recorded plan (No. 4223). The recorded plan bore the notation of the city clerk 'Approval of this sub-division not required under Sub-division control Law by Planning Board.' The Crowleys' deed refers to the tecorded plan which shows a rectangular area bounded by a forty foot wide dirt roadway designated on three sides as Crestshire Drive and on the fourth side as Zanni Avenue. The Crowley dwelling faced north on parcel 11, which was the northwest corner of the rectangle formed by the roadway. The level of Crestshire Drive was the same on both the north and west sides of parcel 11. Under their deed the Crowleys owned the fee to the middle of Crestshire Drive as it abuts parcel 11 on both the north and west, and they had the right to pass and repass over Crestshire Drive and Zanni Avenue.
In October, 1964, the planning board of Lawrence approved a subdivision plan submitted by Ryan. The plan was approved and recorded as No. 4358. It included about twenty lots mainly south of parcel 11 and necessary streets. Plan No. 4358 bears the notation that it supersedes a portion of plan No. 4223, specifying by number the lots on No. 4223 which are affected. Parcel 11 is not specified. The Crowleys had notice of the planning board hearing for the approval of the plan but they did not object. Included in plan No. 4358 was a lot on the west side of Crestshire Drive (the Ryan lot) roughly opposite parcel 11. Ryan owned the fee to the middle of Crestshire Drive and had the right to pass and repass over the whole length of Crestshire Drive. The Ryan lot was originally low and swampy. Ryan's predecessor in title had installed a sewer for the west side of Crestshire Drive. Ryan filled in the lot and built a house on it.
In July, 1965, when the Crowleys saw that Ryan was raising the elevation of Crestshire Drive on the west side of parcel 11, they at once complained to Ryan and later to the planning board, without avail. Ryan built up the old dirt surface and grade of Crestshire Drive about two and one-half feet and finished it with a hot top surface and granite curbings on each side. The elevations complied with those shown on the subdivision plan as approved by the planning board.
The present surface of Crestshire Drive on the west side of parcel 11 is two and one-half feet above the cellar door of the Crowley house, and the sill of the cellar window on the west side of the house is about a foot below the curbing installed by Ryan. The Crowleys have sustained damages to their property in the sum of $2,000 as a result of Ryan's acts.
The lowering of the surface of Crestshire Drive to its original grade would mean that the sewer for Ryan's lot would not have the needed earth cover (three feet) to prevent freezing. The lowering of the sewer three feet would prevent the gravity flow of sewage through the other streets of Ryan's subdivision.
The master appended to his report objections made by Ryan and also a paper entitled 'Master's Reply to Defendant's Objections.' The latter was 'Filed by leave of court.' 2 The paper should have been ordered struck since none of the conditions contemplated by Rule 90 of the Superior Court (1954) warranted the filing of the paper. See Anderson Corp. v. Blanch, 340 Mass. 43, 49, 162 N.E.2d 825. The irregularity, however, was not reversible error. With but one exception, to be discussed at the end of this opinion, the master's report, read without reference to his 'Reply,' supported the decrees entered by the judge. Ryan's objections were essentially argumentative against the conclusions of fact made by the master. There was no request for a summary of the evidence. There was no motion to recommit. The findings were not mutually inconsistent, contradictory or plainly wrong. They are binding upon us. Sykes v. Smith, 333 Mass. 560, 565, 132 N.E.2d 168.
Ryan contends that he has the right reasonably to improve Crestshire Drive and that his right is superior to the Crowleys' to drain across that roadway. In support of his contention he relies upon Guillet v. Livernois, 297 Mass. 337, 8 N.E.2d 921, 112 A.L.R. 1300. The Livernois case, however, is not applicable. It dealt with an unwrought, impassable, useless private way without a natural grade which an abutter with a right of way could lawfully make usable throughout its length and width by providing a reasonable grade, if he showed due regard to the rights and interests of others.
In the case before us the change in grade in Crestshire Drive was made by Ryan after it was clearly defined and in actual use as a level roadway and after the Crowleys had acquired their land and dwelling. The change was made by Ryan not to improve Crestshire Drive for purposes of travel but rather so that Ryan's subsequently installed sewer system would work as Ryan wanted it to work. And the change in grade was made without regard to any of the Crowleys' rights which were already established under their deed and were unaffected by the planning board's subsequent approval of Ryan's plan. Toothaker v. Planning Bd. of...
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