Home Inv. Co. v. Iovieno
| Decision Date | 29 November 1922 |
| Citation | 243 Mass. 121,137 N.E. 382 |
| Parties | HOME INV. CO. v. IOVIENO et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Worcester County; Frederic Lawton, Judge.
Suit for injunction and damages by the Home Investment Company against Francesco Iovieno and others. From interlocutory and final decrees in favor of the petitioner, defendants appeals. Modified and affirmed.
The object of the suit was to enjoin defendants from trespassing on, passing over, or using a strip of land owned by plaintiff and lying between defendants' land and a great pond, in storing and transporting ice. The answer alleged that defendants' predecessors in title acquired title to the lands by deed from plaintiff; that they were induced to purchase the lots for the purpose f constructing and maintaining an icehouse, with the privilege of taking ice from the pond, by plaintiff's representations, declarations, and statements, and were induced to repair and maintain certain ways at great expense, and on express representations and inducments that they would have a right or way over the Jordan Promenade, the strip in question, in common with other abutters; that they had maintained the icehouse, cut ice, and used the promenade in accordance with plaintiff's wishes and desires; that plaintiff had dedicated the promenade to public use, and the dedication had been accepted; that plaintiff had no title thereto; that plaintiff was estopped and guilty of laches; and that the promenade was a public or private way over which they had a right of way.
The master found that, while there was some doubt as to whether defendants' predecessors fully understood what rights they were getting, there was no evidnece of fraud, and that defendants had used the promenade for the transportation of ice under an oral license which had been withdrawn. Defendants', motion to recommit was denied, and their exceptions to the report overruled, and the report confirmed. Decree was entered enjoining defendants ‘from using Jordan Promenade for uses other than passing and repassing thereon, to and from Jordan Promenade and the ways to which said Jordan Promenade gives access, as shown on the plan of 1906,’ and ordering them to remove all obstructions and structures from the promenade.Fusaro, Simpson & Foley, of Worcester, for appellants.
William C. Foley, of Worcester, for appellee.
The defendants are the owners of two lots of land in Shrewsbury by deed from the plaintiff definite in boundaries both by directions and distances and by reference to a recorded plan. Their lots are separated from a great pond by a strip of land about sixteen feet in width, the title to which is in the plaintiff. This strip of land is part of a path extending by the shore of the great pond for a long distance, laid out on the recorded plan as Jordan Promenade. It is a way which for many years has been used by picnickers, hunters, fishermen and others who resort to the great pond.
The defendants bought their land for the purpose of constructing an icehouse and storing therein ice harvested from the neighboring pond. They have at considerable expense built on their land an icehouse and on Jordan Promenade have erected an ice elevator and an ice shute to the icehouse, and have placed a gasoline engine and have dug a ditch across it, and since 1914 have been using these appliances for conveying ice from the pond to their icehouse. It is necessary for them to go over Jordan Promenade to the pond in order to make any valuable use of their icehouse. This suit is brought by the plaintiff, indisputably the owner of the fee of Jordan Promenade, to compel the removal therefrom of these structures and property and to prevent such further use.
Although the agent of the plaintiff knew at the time of the purchase that the defendants intended to use their lots for an icehouse and that it would be necessary for them to pass over Jordan Promenade to do so, and also knew up to the time of filing this bill that in fact they were so using it, yet the master has found that there was not evidence to convince him that the sale was induced by fraud. The buyers before the deed was passed went upon the land and were shown its true bounds, and also saw the plan of the large tract with its many lots and streets and also Jordan Promenade. The findings of the master cannot be disturbed, for the evidence is not reported.
[2] The circumstances fail to show any grant of a right to use the land of the plaintiff for maintenance and use of the structures placed on it by the defendants. The deed makes no reference to the purpose for which the defendants proposed to use the land, and conveys in terms no right to erect and maintain the structures here complained of. The circumstances of the conveyance did not require by implication rights in Jordan Promenade such as the defendants now assert. This is not a case of bounding land upon a way without express grant of an easement where an easement of passage arises by implied eovenant or by estoppel, of which Lincoln v. Shaw, 17 Mass. 413, is an example. It appears to be conceded by the plaintiff that the defendants have an ordinary easement of passage over Jordan Promenade in common with others. The defendants claim much more and assert in substance a right to its exclusive use for the needs of their business. Therefore, no question arises respecting...
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