Gray v. Howell
| Decision Date | 14 November 1935 |
| Citation | 292 Mass. 400,198 N.E. 516 |
| Parties | GRAY v. HOWELL |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Bill in equity by Frances A. Gray against Rowland M. Howell. From the decree, plaintiff appeals.
Judgment in accordance with opinion.
Appeal from Supreme Judicial Court, Franklin County.
H Sherman and G. M. Gray, both of Greenfield, for appellant.
J. T Bartlett and P. H. Ball, both of Greenfield, for appellee.
This is a bill in equity wherein the plaintiff seeks a mandatory injunction for the removal by the defendant of portions of the defendant's house and garage which encroach upon the plaintiff's right of way.
The defendant's house and lot are located at the northwest corner of Congress and Russell streets in Greenfield. Land formerly of one Buckley adjoins the defendant's land on the north and fronts on Congress street. The plaintiff's land adjoins the defendant's land and the Buckley land on the rear or west and fronts on Russell street. The plaintiff has a right of way from Congress street to her land. For the greater part of the distance this way runs westerly parallel with the boundary between the defendant's land and the Buckley land and is ten feet in width, of which seven feet are on the northerly side of the defendant's land and three feet are on the southerly side of the Buckley land. As the way approaches the plaintiff's land, it curves to the northwest across the southwest corner of the Buckley land to the rear end of the plaintiff's lot. It is the way referred to as the ‘ driveway’ in Buckley v. Gray, 285 Mass. 110, 188 N.E. 610, where the locations of the several lots and of the way are more fully described. The northerly side of the defendant's house protrudes approximately one foot and three inches into the southerly side of the way, with rear steps which protrude into the way two feet one and one-half inches. The eaves project over the way approximately three feet and one inch. The northeast corner of the defendant's garage, which is located back of his house, extends approximately five feet into the way near the point where the way turns to the northwest.
Pertinent findings of the master are these: The defendant purchased his property in 1920. At that time the house encroached upon the way as it does now. It is a two-story frame dwelling, with cellar, chimney, fireplace, plumbing and heating plant. The defendant built the garage in 1920. It is so constructed of concrete that it cannot be removed without substantially destroying it. When the defendant purchased the property he had the title searched by an attorney, who told him that it was free from all encumbrances. Until 1933 the defendant had no knowledge that the plaintiff had a right of way over his land. The defendant has never knowingly caused any encroachment upon the plaintiff's way, except by failing to remove his house and garage after he learned that the plaintiff had a right of way. For many years before the defendant acquired his property and since that time until the decision of this court in Buckley v. Gray, the only driveway actually used in connection with the plaintiff's property was situated entirely upon the Buckley land immediately to the north of the defendant's boundary. This is called the ‘ traveled’ way in Buckley v. Gray. Three feet of it in width along the greater part of the boundary corresponded with that part of the plaintiff's way as defined by the deeds which lay upon the Buckley land, but the greater part of it was upon a portion of the Buckley land not included in the plaintiff's way as defined by the deeds.
It appears from the ‘ memorandum’ of the trial judge that upon the coming in of the master's report, by agreement of counsel, the judge took a view of the premises, and extended discussions with counsel took place with the object of agreeing, if possible, upon a method of giving the plaintiff a right substantially as good as that which she had under her deed without removing the defendant's building. As a result of these discussions the defendant, through his attorney, bought the Buckley property and offered to convey to the plaintiff an additional right of way on the Buckley land adjoining the present legal way on the north, which, as the judge finds, ‘ will afford to the petitioner the use and enjoyment of substantially the same right-of-way heretofore used and enjoyed by her * * * without any inconvenience whatsoever, as distinguished from prior use of right-of-way privileges.’ He further finds that, ‘ To give to the petitioner more than is now proffered, is to give more than is necessary to afford her * * * a right-of-way enjoyment equal to all that her land has heretofore possessed and enjoyed,’ and that because the right of way offered would allow continued use of the traveled way as at present, no expense would be entailed for surfacing; ‘ therefore there is no occasion or warrant to provide for allowance of damages to the petitioner.’
The judge confirmed the master's report and entered a final decree which provides in substance that the defendant shall tender to the plaintiff ‘ a good and sufficient quitclaim deed’ of the additional right of way described above, and that if the plaintiff accepts it, the bill shall be dismissed with costs to the plaintiff, but if the plaintiff refuses to accept it, the defendant shall file the necessary instruments in the registry of deeds, the bill shall stand dismissed and the plaintiff shall pay costs to the defendant.
It is the general rule that equity will compel by mandatory injunction the removal of buildings and structures which unlawfully encroach upon land of another. This rule has been applied so long and so many times in this Commonwealth that it seems unnecessary to cite authorities in support of it. Many of them are collected and discussed in the recent case of Geragosian v. Union Realty Co. (Mass.) 193 N.E 726, 96 A.L.R. 1282. The same rule has been applied, though perhaps more cautiously, where the plaintiff's interest in the land is an easement only. Adequate protection of legal rights against unlawful interference demands that this rule be preserved in full force and applied in the great majority of cases. But the rule has never been regarded as absolutely...
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