Home Development Co. v. Dupre

• Decision Date: 11 June 1948
• Citation: 323 Mass. 98,79 N.E.2d 875
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: HOME DEVELOPMENT COMPANY v. ERNEST DUPRE & another.

323 Mass. 98

79 N.E.2d 875

HOME DEVELOPMENT COMPANY v. ERNEST DUPRE & another.

Supreme Judicial Court of Massachusetts, Norfolk.

June 11, 1948

April 7, 1948.

Present: QUA, C.

J., DOLAN, RONAN WILKINS, & SPALDING, JJ.

Equity Pleading and Practice, Parties.

A final decree dismissing the bill should not have been entered in a suit in equity involving the ownership of real estate where it appeared from a master's report that one who had not been made a party to the suit was interested and the defendants had alleged in their answer that such person was interested and should be joined as a defendant; upon appeal by the plaintiff, the decree was reversed and the suit was remanded for the purpose of joining such person as a defendant and for further hearing upon the question of his interest in the real estate.

BILL IN EQUITY filed in the Superior Court on April 1, 1946, and afterwards amended.

Following the report of a master, an interlocutory decree confirming the report and a final decree dismissing the bill were entered by order of Cabot, J. The plaintiff appealed from the final decree.

S. H. Benoit, for the plaintiff.

A. T. Handverger (W.

W. Fairbanks with him,) for the defendants.

RONAN, J. In this bill in equity, the plaintiff seeks relief in three particulars: first, an injunction to restrain the defendants from maintaining fences along and gates across a way leading from Silver Lake Road to the westerly shore of Silver Lake, a millpond created by a dam erected in Peter's River in Bellingham, and from interfering with the plaintiff's right to use said way; second, to require the defendants, who filled in certain land alleged to be owned by the plaintiff and placed a house thereon, to remove the building and to cease to interfere with the plaintiff's rights to said land; and, third, to compel the defendants who filled in a part of one of the coves in the lake adjacent to the northerly parcel of uplands owned by them, (the land so filled being alleged to belong to the plaintiff and lying beyond the high water mark of the lake), and built a dwelling thereon, to remove the dwelling from this lot of land and to cease from interfering with the plaintiff's rights in this parcel of land.

The record is sufficient for a decision upon the first two branches of the relief sought but not upon the third one. The answer of the defendants alleged that one Lesieur, the owner of a certain lot, and "Virginia Morin, owner of an island in the cove," were interested in the subject matter of the suit and should be joined as parties defendant. Lesieur might be a proper party,...