Kershishian v. Johnson

• Citation: 210 Mass. 135,96 N.E. 56
• Parties: KERSHISHIAN v. JOHNSON.
• Decision Date: 18 October 1911
• Court: United States State Supreme Judicial Court of Massachusetts

210 Mass. 135

96 N.E. 56

KERSHISHIAN v. JOHNSON.

Supreme Judicial Court of Massachusetts, Worcester.

October 18, 1911

COUNSEL

A. E. Livingston, for plaintiff.

W. C Mellish and C. A. Cook, for defendant.

OPINION

RUGG C.J.

This is a suit in equity, by which the plaintiff seeks to have removed a portion of a building erected on his land by the defendant. The ends of the boundary line between land of plaintiff and of the defendant were marked by iron stakes driven in the ground at least as early as 1869 and 1870, when the estates now owned by these parties were conveyed by a common grantor. One of these stakes was found by the master who reported that the other had been removed or covered up by the structures of the defendant. The master further reported that 'the defendant owned his premises for many years. Prior to 1905 there was one cottage thereon. In 1905 the plaintiff's premises were owned by a Mrs. Wallace, his immediate predecessor in title. In 1905 the defendant Johnson directed a builder to construct between the existing cottage and the premises now owned by the plaintiff another cottage twenty-two (22) feet in width. Johnson was told by the builder that there was not space enough to build a cottage of that dimension. He tried to buy of Mrs. Wallace three (3) feet of land but failed to do so and disagreed with her as to the boundary line. The proposed cottage was thereupon cut down to eighteen (18) feet in width and the builder instructed by Johnson to build it and not to get over the line. The builder thereupon, without the assistance of any surveyor, proceeded to locate and erect the cottage and except as before stated * * * Johnson knew nothing and did nothing about the location of the cottage or the determination of the line of his premises. * * * When the builder of Johnson's cottage * * * began to construct the same he made no especial effort to find the boundary line as indicated by deed but shored up the old fence and assumed that it was then on the line. The builder then called out Mrs. Wallace who owned and lived on the plaintiff's premises to show her the proposed location of the cottage. * * * Mrs. Wallace said the location was all right if it did not go over on her estate; that she accepted the assurance of the builder based on his assumption of the position of the fence that the proposed cottage would not encroach upon her estate, and that during her ownership and occupancy of the plaintiff's premises, she continued to accept the builder's assurance. * * * The cottage was built within the location of the old fence as the builder had thus determined it. * * * Mrs. Wallace sold the premises in 1907 to the plaintiff and the plaintiff and Mrs. Wallace occupied the plaintiff's premises without remonstrance as to the location of the cottage until 1908. In 1908 the plaintiff had his premises surveyed for the first time and discovered the discrepancy in the boundary.'

I. It is a general principle that where a defendant, without right without excuse, and without being misled by the speech, silence or conduct of the plaintiff, has attempted to appropriate the plaintiff's property or to interfere with his rights and has changed the condition of his real estate, the defendant is compelled to undo, so far as possible, that which he has wrongfully done affecting the plaintiff and to pay the damages. Lynch v. Union Institution for Savings, 159 Mass. 306-308, 34 N.E. 364, 20 L. R. A. 842; Harrington v. McCarthy, 169 Mass. 492, 48 N.E. 278, 61 Am. St. Rep. 298; Downey v. Hood, 203 Mass. 4, 89 N.E. 24; Curtis Mfg. Co. v. Spencer Wire Co., 203 Mass. 448, 89 N.E. 534, 133 Am. St. Rep. 307. It is urged by the defendant that there has been an honest mistake about the boundary line, and that the plaintiff's predecessor in title shared in this mistake to such an extent that there ought to be no relief in chancery. The finding of the master, however, is to the effect that the old fence, upon which the defendant chiefly relies as the basis of mistake, was irregular and dilapidated, and was never regarded by the parties as a boundary line, until the defendant's builder shored it up and represented it to Mrs. Wallace as the correct line. The builder in all negotiations respecting the location of the boundary line and of the building stood in the place of the defendant. The defendant's instruction to place the cottage on his land did not relieve him of responsibility to the adjoining landowner for acts done by the builder in pursuance of this authority. The defendant made no investigation to determine the position of the boundary line, but left the whole matter to his builder without taking any precaution to see that the trust thus reposed was executed rightly. A landowner who undertakes the erection of a building cannot excuse himself for trespass upon adjoining property by showing that he gave over the location...