Doody v. Spurr

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: RONAN
• Citation: 51 N.E.2d 981,315 Mass. 129
• Parties: DOODY v. SPURR.
• Decision Date: 01 December 1943

315 Mass. 129
51 N.E.2d 981

DOODY
v.
SPURR.

Supreme Judicial Court of Massachusetts, Plymouth.

Dec. 1, 1943.

Suit by Hannah Doody against Ellen E. Spurr to enjoin defendant from parking an automobile upon plaintiff's premises and from using a way for automobile traffic. From an adverse decree and interlocutory decree overruling defendant's exceptions to the master's report and confirming the report, defendant appeals.

Final decree modified and as modified affirmed; interlocutory decree affirmed.

[51 N.E.2d 982]

Appeal from Superior Court, Plymouth County; Brown, Judge.

Before FIELD, C. J., and LUMMUS, DOLAN, COX, and RONAN, JJ.

H. C. Gill, of Brockton, for plaintiff.

H. D. Hunt, of Bridgewater, for defendant.

RONAN, Justice.

This is an appeal from a decree enjoining the defendant from parking an automobile upon the plaintiff's premises and from using a way for automobile traffic to and from a garage in the rear of the defendant's premises. The defendant also appealed from an interlocutory decree overruling exceptions to the master's report and confirming the report.

The facts involved in this controversy appear in the master's report. The plaintiff's premises are located on the northerly side of Belmont Street, a public way in Brockton, and are adjacent to and easterly of the defendant's land. The plaintiff's residence, a small cottage house, used by her as a rooming and boarding house, is situated farther back from the street than the house located upon the defendant's lot. A concrete or cement walk leads northerly from the street along the westerly boundary of the plaintiff's lot, and a few feet northerly of the northeast corner of the defendant's house leaves this boundary and continues to the side piazza of the plaintiff's house. About opposite this corner of the defendant's house, there is a short branch of this walk which runs northeasterly to the front piazza of the plaintiff's house. The triangular space formed by both branches of this walk and the westerly front of the plaintiff's house is a grass plot. The apex of this grass plot is but a short distance from the northeasterly corner of the defendant's house. This concrete or cement walk is of light construction

[51 N.E.2d 983]

and has ‘a light coating of cement.’ The parking of his automobile by the defendant's husband upon this walk sometime prior to the erection of the defendant's garage caused the walk to settle. A gravel driveway having a heavy base and obviously designed for vehicular travel runs from the street along the easterly side of the cement walk, and ends at the southeasterly side of the easterly branch of the walk. The defendant's house extends entirely across her lot. She has constructed a garage under the rear of her house and upon the westerly portion of her lot. She contends that she has a right of way along the driveway and across the fork in the walk near the northeasterly corner of her house for the use of an automobile in going to or leaving her premises. That path has been used for automobiles travelling between the street and her garage. She concedes that the walk and driveway are located upon the plaintiff's premises, but contends that the use of the way for automobile travel was given to her by grant. It appears that sometime prior to 1919 both lots were owned by a common grantor a savings bank. The bank conveyed to persons named Peabody the lot now owned by the plaintiff and reserved a right of way over the concrete walk and the driveway. The bank later conveyed to one of the defendant's predecessors in title the lot now owned by the defendant ‘Together with all the rights of way as set forth in the deed to said Peabodys already referred to in which grantor especially reserved to itself and to the lot of land herein conveyed, all reasonable and...