Green v. Richmond

• Citation: 29 N.E. 770,155 Mass. 188
• Parties: GREEN STARKIE v. RICHMOND. STARKIE v. SAME.
• Decision Date: 06 January 1892
• Court: United States State Supreme Judicial Court of Massachusetts

155 Mass. 188

29 N.E. 770

GREEN STARKIE v. RICHMOND. STARKIE v. SAME.

Supreme Judicial Court of Massachusetts, Worcester.

January 6, 1892

COUNSEL

F.P. Goulding and R. Hoar, for plaintiffs.

W.S.B Hopkins and F.B. Smith, or defendant.

OPINION

MORTON J.

When the defendant began the erection of his building he was notified by the plaintiff Starkie that the foundation was over on the passage-way. The defendant, relying upon his own deeds, made no change, and proceeded with the building. The court found at the trial that the building encroached upon the way. If Starkie, upon discovering the trespass, had applied seasonably to the court, the defendant might perhaps have been compelled to remove his building from the way. Linzee v. Maxer, 101 Mass. 512; Tucker v Howard, 128 Mass. 361. He did not do that. He lived there, and carried on business there, knew the condition of things, and he and others who had occasion to go to and from his premises used the way; but from 1878, when the building was erected, till 1887, when the fence of which he complained was built, he took no steps towards the removal of the block, or to recover damages, or to assert his rights. He was not only passive when he should have been active, but he was active when he should have been passive. During the latter part of the time he had several interviews with the defendant about paving the passage-way from Main street, and the area in the rear of defendant's block, and he, with the defendant and others interested, paved the same at their joint expense up to the block without any objection, so far as appears, that it encroached on the way. With the exception that he was abroad when the block was built, and did not know till some years after that the way was narrowed, though he might readily have ascertained it, what has been said as to Starkie will apply to Green. In addition to this, it is found by the presiding judge in both cases that the fence, post, and other obstructions which the defendant was directed by the final decree to remove have been removed by him, and that the passage-way is now in width and form substantially as it was from 1878 to 1887. The presiding judge, in anticipation of these removals, further found that when they were made there would exist, in the case of Starkie, a passage-way to and from his premises substantially and for all practical purposes such as was conveyed to them by the Davis deed in 1872; and in the case of Green, that there would be a passage-way convenient for teams to pass and repass to and from his premises. This was what the deed of Davis to the predecessors of Green in 1834 called for.

In view of these facts we think that the refusal of the presiding judge to order the removal of so much of the building as stood upon the way was correct. It is not every case of a permanent obstruction in the use of an easement that entitles the aggrieved party to a restoration of the former situation. Each case depends on its own circumstances. It is for the court, in the exercise of a sound discretion, to determine in such instances whether a mandatory injunction shall issue. It will not be issued when it appears that it will operate inequitably and oppressively, nor when it appears that there has been unreasonable delay by the party seeking it, in the enforcement of his rights, nor when the injury complained of is not serious or substantial, and may be readily compensated in damages, while to restore things as they were before the acts complained of would subject the other party to great inconvenience and loss. 2 Story, Eq.Jur. § 959a; Kerr, Inj. (1st Amer.Ed.) 231; Royal Bank of Liverpool v. Grand J.R. & D. Co., 125 Mass. 490; Lewis v. Chapman, 3 Beav. 133; Gaskin v. Balls, 13 Ch.Div. 324; Aynsley v. Glover, L.R. 18 Eq. 544. It is plain that all these elements exist in this case.

In the next place, the plaintiffs claim, as we understand them, that prior to the defendant's purchase of the premises they had acquired a right to use the entire area of the Slater block as a way. There are several objections to this claim. In the first place, it may be doubted whether notwithstanding what is stated as to the extent of the use, the presiding judge in his finding that the defendant had a right to occupy the rear lot has not settled the fact as to the right of the plaintiffs to use it for a way against them. Again, it may be doubted also whether, so far as that way depends on prescription, the plaintiffs could prescribe for such a way as they claim. A way imports a right of passing in a particular line, and not everywhere over the premises over which it is claimed. Jones v. Percival, 5 Pick. 484; Nichols v. Luce, 24 Pick. 104; Chase v. Perry, 132 Mass. 582; Washb.Easem. (2d Ed.] *93, *160. And the character of the use was such in the present instance that it may well be presumed to have been by the sufferance of the defendant and his predecessors in title. Still further, the deed under which the plaintiff Green and his grantees acquired title from Davis, the former owner of the estate, in effect provided that the way might be carried further east, as changes in the Slater block property required; and even if there had been a right of way from...