Goldstein v. Beal

• Citation: 59 N.E.2d 712,317 Mass. 750
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 01 March 1945
• Parties: ANNIE GOLDSTEIN v. JOSEPH BEAL & another.

317 Mass. 750

59 N.E.2d 712

ANNIE GOLDSTEIN v. JOSEPH BEAL & another.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1945

October 3, 1944.

Present: FIELD, C.

J., LUMMUS, QUA RONAN, & SPALDING, JJ.

Way, Private creation. Deed, Construction. Real Property, Registered land plan, easement. Easement. Trespass. Equity Jurisdiction Trespass, Laches. Laches. Equity Pleading and Practice, Decree.

The fact, that the owner of a tract of registered land erected a building thereon occupying nearly one half of the location, throughout its entire length, of a passageway shown on a plan as running along the common boundary of two lots, also shown on the plan, into which the tract was divided upon a subsequent severance of the common ownership by the giving of a separate mortgage of each of such lots, prevented any easement in the passageway coming into existence in favor of either lot upon such severance, although, in a new certificate of title then issued to the mortgagor and in all subsequent deeds of and certificates of title to the lots, the lots were referred to as those "shown" on the plan.

Upon severance of a common ownership of two contiguous lots of registered land, during which common ownership a fire escape on a building on one of the lots had overhung the other lot and a passageway had been in existence partly on each lot, G. L. (Ter. Ed.) c. 185, Section 46, prevented an implied easement so to maintain the fire escape or any implied easement in the passageway from arising in favor of the first lot against the second lot in the possession of a purchaser who was not shown to have taken, otherwise than for value and in good faith, a certificate of title to the second lot on which no such encumbrances were noted.

Nothing appeared in a suit in equity to prevent the application of the general rule respecting trespassing structures by ordering the defendant to remove from a building on his land a fire escape which overhung adjoining land of the plaintiff nearly four feet.

A finding that laches barred a suit in equity by a landowner seeking to have the owner of adjoining land ordered to remove a fire escape overhanging the plaintiff's land was not justified by the mere fact that the plaintiff had delayed bringing the suit until a time when, "due to war conditions," the defendant "would find it exceedingly difficult if not impossible to make the change"; but such conditions might be taken into account by the trial court in fixing terms of the decree ordering the removal.

The issue of alleged laches on the part of a landowner, plaintiff in a suit in equity to have the owner of adjoining land ordered to remove a fire escape which had overhung the plaintiff's land for many years before the plaintiff acquired title, must be determined on the basis of the plaintiff's own conduct without regard to possible delays on the part of his predecessors in title.

BILL IN EQUITY, filed in the Superior Court on August 4, 1941. The suit was heard by Cabot, J.

G. L. Rabb, for the plaintiff. C. J. Miller, for the defendant Beal.

SPALDING, J. By this bill in equity the plaintiff seeks a mandatory injunction ordering the defendant Beal (hereinafter called the defendant)

^[1] to remove from his building a fire escape which, it is alleged, extends over the land of the plaintiff; she also asks to have the defendant's building removed to the extent that it encroaches upon a passageway adjoining her land on the ground that it interferes with her "rights of free and unobstructed use of air, light, and passage." From a final decree dismissing the bill and granting certain relief to the defendant on his counterclaim the plaintiff appeals.

The evidence is reported and the trial judge filed a statement of "findings, rulings and order for decree." The pertinent facts, concerning which there is no dispute, are these: The plaintiff owns land which is bounded on the northeast side by land of the defendant. Both titles are derived from a common owner in the following circumstances Prior to May 20, 1916, the lots now owned by the plaintiff and the defendant were parts of a larger parcel owned by one Shapira as trustee of the City and Suburban Real Estate Trust. On May 20, 1916, Shapira filed a petition in the Land Court for the registration of title to this parcel as shown on a plan which was filed with the petition. The lots of the plaintiff and the defendant formed a part of lot A included in that plan but were not set off as separate lots. At approximately the same time Shapira conveyed lot A to one Maguire. On January 17, 1917, the Land Court issued a decree of registration of title to lot A on Shapira's petition but in the name of Maguire, whose name had been substituted as owner. Prior to this decree Maguire obtained permission from the city of Boston to build two buildings on lot A. One of the buildings stands on the land now owned by the defendant and was completed on March 24, 1917; the other building is on land now owned by the plaintiff and was completed on May 5, 1917.

On September 29, 1917, a plan (dated May 17, 1916) was referred to in a certificate of title of one Brown, who then owned lot A, as hereinafter stated. By this plan lot A was subdivided into three lots: A1, A2 and A3. The plaintiff is the owner of lots A2 and A3 and the defendant owns lot A1. Lots A1 and A2 are contiguous and the controversy in this case concerns them.

The subdivision plan shows a passageway eleven feet wide between lots A1 and A2 running from Allston Street to a twelve-foot passageway ^[1] in the rear. Of this eleven-foot passageway, according to the subdivision plan, six feet are on lot A1 owned by the defendant and five feet are on lot A2, the plaintiff's lot. The building plans filed with the city contemplated that the proposed building on lot A1 was, on the southwesterly side, to be adjacent to the edge of the eleven-foot passageway; the northeasterly side of the proposed building on lot A2 was likewise to be adjacent to the edge of the passageway. Thus, had the buildings been erected as contemplated by the building plans, neither building would have encroached upon this passageway. However, when the buildings were built they did not conform to the building plans, each building being placed approximately five feet three inches to the southwest of the position contemplated in the plans. As a result the building on lot A1 extends into the eleven-foot passageway shown on the subdivision plan approximately five feet three inches throughout its entire length, that is, from Allston Street to the twelve-foot passageway in the rear. This building, except as to the fire escape, hereinafter discussed, is approximately nine inches from the property line between lots A1 and A2.

The structure on each lot is a three-story brick building used as an apartment house, and neither has been changed in any substantial respect since it was built. The defendant's building when erected had a metal fire escape on the side adjacent to lot A2 which has remained there ever since. It is of the usual open work iron type and extends from the third story to within forty-three and one half inches from the ground. From the front to the rear it is seventeen feet long and it projects out from the wall of the building four and one half feet, with the result that it extends beyond the lot line between lots A1 and A2 to the extent of three feet nine inches for its entire length.

There is at the present time a passageway between the two buildings running from Allston Street to the twelve-foot passageway in the rear, although not in the same position as that designated in the subdivision plan. In addition to the fire escape which hangs over the present passageway, a flight of concrete steps slightly over eleven feet long extends into it from the plaintiff's building to the extent of three feet three and five eighths inches, leaving a space of forty inches between the steps and the fire escape. The steps, however, are entirely on the plaintiff's land and do not extend into the passageway designated on the subdivision plan.

The plaintiff holds a transfer certificate of title to lots A2 and A3 dated July 27, 1933. The defendant holds a transfer certificate of title to lot A1 dated December 13, 1929. Each certificate referred to the lot or lots included therein as those shown on the subdivision plan. ^[1] Prior to the times that the plaintiff and the defendant acquired title to her or his respective lot, there had been several transfers of title to each lot; each of the transfer certificates contained a reference to the subdivision plan similar to that appearing in the certificates of the plaintiff and the defendant. With exceptions not here material, no easements in favor of or as an encumbrance on either lot were noted on the plaintiff's or the defendant's certificate.

A final decree was entered dismissing the bill with costs to the defendant Beal; it further provided that the defendant Beal has the right to maintain his building and fire escape as they now exist, and that the plaintiff execute within thirty days "an instrument of conveyance so that the passageway between lots A1 and A2 . . . [as shown on the subdivision plan filed in the Land Court] may be established as of record as it now exists in fact, including an easement appurtenant to said Lot A1 for the maintenance of a fire escape substantially as it now exists as described in the findings, rulings and order for decree.

"

1. No easement in favor of either lot was acquired with respect to the eleven-foot passageway designated on the subdivision plan. The Land Court by its original decree of registration issued to Maguire created no easements or rights with reference to the eleven-foot passageway. So long...