Geragosian v. Union Realty Co.

• Decision Date: 08 January 1935
• Parties: GERAGOSIAN v. UNION REALTY CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

289 Mass. 104

193 N.E. 726

GERAGOSIAN v. UNION REALTY CO. et al.

Supreme Judicial Court of Massachusetts, Middlesex.

January 8, 1935

Suit in equity by Moses Geragosian against the Union Realty Company and another. From a final decree for plaintiff, defendants appeal.

Modified, and, as modified, affirmed.

Appeal from Superior Court, Middlesex County; Walsh, Judge.

B Ginsburg, of Boston, for appellant Union Realty Co.

W. B Sullivan, Jr., of Boston, for appellee.

LUMMUS, Justice.

In 1927 one Vartigian built a theatre in Somerville on land the rear of which adjoined the rear of land of one Aaronian. Both lots bounded also in the rear upon a private way called Sewall court, which ran into Sewall street. There is no finding as to the ownership of the fee in Sewall court, but it is found that rights of way over Sewall court are appurtenant to both the Vartigian land and the Aaronian land. The plaintiff, now owning the Aaronian land, seeks an injunction against the present owners of the theatre, for the removal of trespassing structures.

The platforms of the fire escape on the theatre at all three levels, and the stairway between the first and second levels, overhang the end of Sewall court to a maximum extent of two to three feet. This overhang is all at a considerable height above the ground, and is close to the wall of the theatre, at a point where the use of the way could be of no benefit to the Aaronian land. The record does not show that the owner of the Aaronian land has a right to have Sewall court kept open to the sky. The final decree was erroneous in ordering the removal of the fire escapes so far as they extend over Sewall court. Sargeant v. Traverse Building Trust, 267 Mass. 490, 494, 167 N.E. 233; Carter v. Sullivan, 281 Mass. 217, 183 N.E. 343. Compare Levenson v. Ciampa, 251 Mass. 379, 146 N.E. 681. See, also, as to structures which do not interfere with a right of way because underground, Kendall v. Hardy, 208 Mass. 20, 28, 29, 94 N.E. 254, and New York Central Railroad Co. v. Ayer, 239 Mass. 70, 78, 79, 131 N.E. 325.

The theatre encroaches upon the Aaronian land itself in two respects. First, the platform of the fire escape on the theatre, at the third level, far above the ground, overhangs a piece of the Aaronian land eleven inches wide and three feet long, but causes no interference with the present use of that land. Second, a drain from the theatre runs, at a depth of eight or nine feet below the surface, about fifty-three feet through the unoccupied rear part of the Aaronian land, and a further distance through the soil of Sewall court, to a manhole, where it empties into a sewer which runs from that manhole in Sewall court through Sewall street. This drain does not interfere with the use of the right of way over Sewall court, and does not interfere with the present use of the Aaronian land, upon the front of which a block of thirteen one-story garage is maintained for hire.

The defendant Union Realty Company took from Vartigian two mortgages covering the theatre, and assigned the first one to the defendant Charlestown Five Cents Savings Bank in 1927. In 1928 Vartigian conveyed his equity of redemption to Sidney Realty Company, in which Union Realty Company held three-fourths of the stock and Vartigian's wife held the rest. A dispute arose as early as 1929 between Union Realty Company and Vartigian over a candy stand which Vartigian or his wife maintained in the theatre. On January 28, 1930, Union Realty Company, controlling Sidney Realty Company, prevented the further maintenance of the stand.

On January 30, 1930, Vartigian induced his wife's step-brother, the plaintiff Geragosian, to buy the Aaronian land for $3,400. Title passed to him on February 4, 1930. Vartigian then knew of the encroachments, and his purpose in inducing the plaintiff to buy the land was to control it and to make trouble for Union Realty Company. But when the theatre was built, the encroachments were unintentional on the part of Vartigian. The master does not find that Geragosian shared in the purpose of Vartigian, or is under the control of Vartigian. On June 12, 1931, Union Realty Company foreclosed its second mortgage on the theatre, and bought in the theatre at the foreclosure sale. The land and buildings of the plaintiff Geragosian are worth about $2,800. The theatre, with its land, is worth about $250,000. The cost of a new drain which would not trespass on the plaintiff's land would be $4,300. The small part of the fire escape platform that overhangs the plaintiff's land, it is found, ‘ could be removed without much difficulty and without materially interfering with the defendant's use of its fire escapes.’

This bill was filed on October 26, 1932, although the controversy had existed since early in 1932, and the fact of encroachment had been called to the attention of Union Realty Company in 1930 or 1931.

The right of property which the plaintiff seeks to protect is legal, not merely equitable. Curtis Mfg. Co. v. Spencer Wire Co., 203 Mass. 448, 452, 89 N.E. 534,133 Am.St.Rep. 307; Szathmary v. Boston & Albany Railroad Co., 214 Mass. 42, 45, 100 N.E. 1107. It is not a mere easement, as in Starkie v. Richmond, 155 Mass. 188, 29 N.E. 770,Levi v. Worcester Consolidated Street Railway Co., 193 Mass. 116, 78 N.E. 853, and Kendall v. Hardy, 208 Mass. 20, 94 N.E. 254; although an injunction has often been granted for the protection of an easement. Brookline v. Whidden, 229 Mass. 485, 118 N.E. 981; Siegel v. Starzyk, 238 Mass. 291, 130 N.E. 499; New York Central Railroad Co. v. Ayer, 239 Mass. 70, 131 N.E. 325; Id., 242 Mass. 69, 136 N.E. 364; Peavey v. Moran, 256 Mass. 311, 152 N.E. 360; Carter v. Sullivan, 281 Mass. 217, 183 N.E. 343. Neither is the plaintiff's right a mere leasehold, soon to expire. Brande v. Grace, 154 Mass. 210, 31 N.E. 633; Lynch v. Union Institution for Savings, 158 Mass. 394, 33 N.E. 603; Id., 159 Mass. 306, 34 N.E. 364,20 L.R.A. 842. It is the fee.

The protection by injunction of property rights against continuing trespasses by encroaching structures has sometimes been based upon the danger that a continuance of the wrong may ripen into title by adverse possession or a right of prescription. Harrington v. McCarthy, 169 Mass. 492 494, 48 N.E. 278,61 Am.St.Rep. 298; Cobb v. Massachusetts Chemical Co., 179 Mass. 423, 426, 60 N.E. 790; Marcus v. Brody, 254 Mass. 152, 155, 149 N.E. 673; Tyler v. City of Haverhill, 272 Mass. 313, 315, 172 N.E. 342. Other cases point out that, since trespassing structures constitute a nuisance (Codman v. Evans, 7 Allen, 431; Miles v. City of Worcester, 154 Mass. 511, 28 N.E. 676,13 L.R.A. 841, 26 Am.St.Rep. 264; Milton v. Puffer, 207 Mass. 416, 93 N.E. 634,32 L.R.A. (N. S.) 1010), and a plaintiff obtaining a second judgment for nuisance has a right to have the nuisance abated by warrant of the court (G. L. [Ter. Ed.] c. 243, § 3), the denial of an injunction would only drive the plaintiff to a more dilatory remedy to obtain removal or abatement ( Curtis Mfg. Co. v. Spencer Wire Co., 203 Mass. 448, 452, 89 N.E. 534,133 Am.St.Rep. 307; Szathmary v. Boston & Albany Railroad Co., 214 Mass. 42, 45, 100 N.E. 1107). But the basic reason lies deeper. It is the same reason ‘ which lies at the foundation of the jurisdiction for decreeing specific performance of contracts for the sale of real estate. A particular piece of real estate cannot be replaced by any sum of money, however large; and one who wants a particular estate for a specific use, if deprived of his rights, cannot be said to receive an exact equivalent or complete indemnity by the payment of a sum of money. A title to real estate, therefore, will be protected in a court of equity by a decree which will preserve to the owner the property itself, instead of a sum of money which represents its value.’ Knowlton, J., in Lynch v. Union Institution for Savings, 159 Mass. 306, 308, 34 N.E. 364,20 L.R.A. 842. Leaving an aggrieved landowner to remove a trespassing structure at his own expense and risk, would amount in practice to a denial of all remedy, except damages, in most c...