Doody v. Spurr

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

315 Mass. 129

51 N.E.2d 981

HANNAH DOODY v. ELLEN E. SPURR.

Supreme Judicial Court of Massachusetts, Plymouth.

December 1, 1943

October 6, 1943.

Present: FIELD, C.

J., LUMMUS, DOLAN COX, & RONAN, JJ.

Way, Private extent, abuse of easement. Deed, Construction. Equity Pleading and Practice, Question of law or fact, Injunction. Trespass. Equity Jurisdiction, Trespass, Abuse of easement.

The owner of land and a dwelling house, having "all reasonable and necessary rights of way over" a concrete walk intended only for foot travel along the boundary of his land and over a driveway of gravel base parallel to the walk and intended for vehicular travel, was not entitled to cross the walk from the driveway with an automobile to reach a garage which he had constructed on his land after the owner of the lot upon which were the driveway and walk had complained of his use of the walk for automobile parking purposes.

BILL IN EQUITY filed in the Superior Court on February 10, 1937. An interlocutory decree was entered by order of Baker, J., and a final decree by order of Brown, J.

The master, in a report filed in court on March 31, 1942, found that a savings bank, having foreclosed a mortgage on property including both of the parcels afterwards owned by the plaintiff and by the defendant, "by respective deeds divided the property according to a plan," a reduced copy of which was annexed to his report. Material portions of the plan were as follows: (ILLUSTRATION)

H. L. Hunt, for the defendant.

H.

C. Gill, for the plaintiff.

RONAN, J. 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 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 necessary rights of way over the concrete walk and over the gravelled driveway running northerly from said Belmont Street." The master found that the concrete walk was intended only for foot travel and the driveway for vehicular travel; that the defendant had no right to use the walk as a driveway for automobiles going to or leaving her premises; and that the space between the northeasterly corner of the defendant's house and the apex of the grass plot was too short to permit an automobile to travel over the walk and to the defendant's premises without driving upon the grass plot.

The findings of the master do not purport to rest upon his subsidiary findings but are based apparently upon all the evidence heard by him, and his general conclusions, not being inconsistent with any of his subsidiary findings, must stand. There was no error in confirming the report and in overruling the defendant's exceptions, all of which challenge the correctness of certain findings by the master. Zak v. Zak, 305 Mass. 194 . Smith v. Smith, 313 Mass. 687 . Brodie v. Evirs, 313 Mass. 741 .

The walk and driveway were in existence when the right of way was created by the reservation made by the common grantor and later was granted to the...