Driscoll v. Smith

• Decision Date: 20 October 1903
• Parties: DRISCOLL v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 221

68 N.E. 210

DRISCOLL v. SMITH.

Supreme Judicial Court of Massachusetts, Hampden.

October 20, 1903

COUNSEL

Green & Bennett, for plaintiff.

Brooks & Hamilton, for defendant.

OPINION

MORTON J.

The plaintiff is the owner of a lot of land in Chicopee conveyed to him by the defendant. The deed bounds the land in part 'on the northerly line of Smith St.' The bill alleges, amongst other things, that the defendant is the owner of the land over which Smith street extends, and that he has built a fence across the same, and forbidden the plaintiff to travel on the same, and has done other things inconsistent with plaintiff's use of the street; and it prays that the defendant may be compelled to remove the fence, and may be restrained from any and all acts inconsistent with the use of the street by the plaintiff. The defendant filed an answer which set up, amongst other defenses, that the plaintiff had a plain and adequate remedy at law, and had not stated a case which entitled him to relief in equity. These grounds of objection were in the nature of a demurrer. The plaintiff joined issue, and the case was sent to a master, to hear the parties and report the facts and the evidence to the court. The master, without any objection, so far as appears, on the defendant's part heard the parties, and took a view, and made a report of his findings, with the evidence. The defendant filed exceptions in regard to matters of evidence before the master, and in regard to certain findings by the master. The court overruled all of the defendant's exceptions to the admission of evidence, and all the exceptions to the master's report except one, the fifth, relating to a finding by the master that the defendant was 'estopped to deny the existence of Smith street from the plaintiff's lot in a straight line to the old cider mill, and thence out to Prospect street,' which it sustained, and 'upon all the facts set forth in the master's report, and in accordance with the decision in Washburn v. Miller, 117 Mass 376,' ruled that, upon the defenses set up in the eighth and ninth sections of the answer (the objections in the nature of a demurrer), the defendant was entitled to a decree, and ordered the bill to be dismissed, with costs. Both parties appealed, but the defendant has not pressed his appeal, and we regard it as waived. Lest, however, we may have misconceived the defendant's position in regard to his appeal, we add that we discern no error in the overruling of the defendant's exceptions. But we think that the court erred in ruling that the defendant was entitled to avail himself of the objection to the maintenance of the bill set up in the eighth and ninth sections of the answer, and in sustaining the fifth exception to the master's report, and in dismissing the bill.

By proceeding without objection to a hearing on the merits before the master, the defendant must be taken to have waived the allegations in his answer that the plaintiff had a plain and adequate remedy at law, and that the bill did not state a case that entitled him to relief in equity. Parker v Nickerson, 137 Mass. 487. Moreover, we think that the remedy at law is not adequate, and that the bill states a case for relief. The case is one of continuing interference with the plaintiff's right of passage over Smith street, and not, as in Washburn v. Miller, 117 Mass. 376, a case of part trespasses,...