Gorton v. Schofield

• Decision Date: 02 April 1942
• Citation: 311 Mass. 352,41 N.E.2d 12
• Parties: FRANCES P. GORTON v. JOHN J. SCHOFIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 352

41 N.E.2d 12

FRANCES P. GORTON v. JOHN J. SCHOFIELD.

Supreme Judicial Court of Massachusetts, Essex.

April 2, 1942

November 3, 1941.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & RONAN, JJ.

Real Property Lateral support. Easement. Equity Jurisdiction, Lateral support, Remedy at law.

Upon findings in a suit in equity that at least sixty years before the suit was brought a predecessor in title of the defendant by excavating at the rear of his lot had removed support from adjoining land of a predecessor in title of the plaintiff and had built on his own land a retaining wall to supply the support thus removed, and that the defendant had permitted the wall to fall into disrepair, causing subsidence in the plaintiff's land from time to time, especially after heavy rains, a decree was warranted ordering the defendant to provide adequate support to the plaintiff's land.

BILL IN EQUITY filed in the Superior Court with a writ of summons and attachment dated October 7, 1938.

The case was heard by Forte, J. F. X. Hurley, for the defendant, submitted a brief.

F. H. Tarr, for the plaintiff.

DOLAN, J. This is a bill in equity by which the plaintiff seeks to compel the defendant to rebuild or repair a retaining wall on the defendant's land which provides lateral support to the plaintiff's land. The judge entered an interlocutory decree overruling the defendant's exceptions to the master's report and confirming the same, and a final decree ordering the defendant to "provide adequate support to the plaintiff's land, at the rear thereof adjoining the retaining wall . . . by strengthening the said retaining wall now existing, or by any other effective means which will provide adequate support to the plaintiff's land . . . [and enjoining the defendant] from doing any acts, or permitting any acts to be done, which will weaken further said retaining wall or in any way deprive the plaintiff's land of its present lateral support." Under the terms of the decree the defendant was further enjoined from removing props and beams supporting a portion of the retaining wall "until permanent support to the plaintiff's land is made," and the defendant was ordered to pay the plaintiff $15 (damages) and costs. The defendant's appeal from the final decree brings the case before us.

Material facts found by the master follow: The plaintiff is the owner of a parcel of land with a dwelling house thereon situated on the southerly side of Middle Street in Gloucester. The lot runs easterly along the street sixty-five and thirty-seven hundredths feet, southerly one hundred one and seventy-six hundredths feet, then westerly eighty-three and twenty hundredths feet and northerly one hundred and sixty-five hundredths feet.

^[1] The defendant's lot faces on Main Street which runs parallel to Middle Street and the rear of his lot adjoins and abuts the rear of the plaintiff's lot. The defendant's lot extends back from Main Street about one hundred sixty-six feet, the deeds describing it as running back as far as the Gorton lot. The retaining wall is erected on the rear line of the defendant's property and is "constructed entirely upon the Schofield land." The wall is three feet from the plaintiff's boundary line at the southeast corner of the Gorton lot and coincides with the boundary line at a point two feet from the southwest corner. On the top course of the wall there are five stones which project toward Middle Street. Three of these stones project a few inches over the Gorton line and are used as supports for perpendicular poles which are part of a wire fence constructed on the plaintiff's land along its rear boundary to a jog in the wall.

The wall, of granite construction, is approximately eighty-five feet long and fourteen feet high, and on its top at the easterly part thereof there is a brick wall four feet high and approximately fifty-five feet long. The granite wall is in disrepair and is not sufficiently strong to support the land of the plaintiff without being repaired or properly braced. The plaintiff's land has caved or fallen in, and is cracked to a greater or lesser degree along the entire rear line of her property. Originally the plaintiff's and the defendant's lands were on a "sloping ridge or hill, which sloped southerly from Middle Street down to the sea." The defendant's land, due to excavations, is now level, but the plaintiff's land still slopes down to the retaining wall. The plaintiff's and the defendant's respective lots "were never held by the same ownership."

Prior to 1937 there was standing on the defendant's property a stable built close up against and abutting the retaining wall. This building was erected prior to the year 1880. It was a substantial structure with upright timbers close up against the wall, and the roof of the easterly part of the stable was fastened directly to the wall. This building furnished support to the wall. In 1937, however, this stable was completely demolished, and in the spring of 1938 there was a sinking of the land in the rear of the plaintiff's lot forming a large hole four or five feet deep, ten or twelve wide, extending six or eight feet to a point about four feet from the rear of the plaintiff's house. Later other holes appeared.

To remedy this condition the plaintiff, with the defendant's permission, shored and supported the most unstable part of the wall with wooden timbers and the parties stipulated that no admissions of liability or waiver were made by so doing. The wall, however, particularly the easterly part, is still unsafe, unstable and in danger of collapse. The master further found that the total amount expended by the plaintiff to the time of the hearing was $15, but that the cost of repair of the wall would be between $1,000 and $1,500. He also found that there had been no damage to the plaintiff's house.

The master found that there "was no evidence establishing the date, when, or the person by whom, this excavation of the defendant's land was made, or when or by whom the wall was built," but he also found on all the evidence and the reasonable inferences therefrom that the excavation had been made by a former owner of the defendant's land (between 1848 and 1876) and that the wall was constructed at that time by the same person to provide support for the plaintiff's land.

The defendant has argued that the finding of the master that the wall was constructed entirely upon the defendant's property is inconsistent with the subsidiary facts found by the master. This contention cannot be sustained. There is nothing inconsistent between that finding and the subsidiary finding that the wall and the rear line of the plaintiff's property coincide. The wall could still be on the defendant's land and be coincident with the boundary line. Moreover, the maps and charts incorporated by reference in the report of the master, which are before us, demonstrate that the wall is on the defendant's land, as found by the master. That he found that three stones on the top course of the wall projected a few inches over the plaintiff's boundary line does not vitiate the general finding under discussion.

The defendant also contends that the findings of the master that the excavation had been made by a former owner of the defendant's land between 1848 and 1876, and that the wall was constructed by that owner to provide support for the plaintiff's land are inconsistent with the subsidiary finding that there was no evidence establishing the...