Lawrence v. Smith

• Decision Date: 26 February 1909
• Citation: 201 Mass. 214,87 N.E. 623
• Parties: LAWRENCE et al. v. SMITH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 214

87 N.E. 623

LAWRENCE et al. v. SMITH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1909

COUNSEL

Hill, Barlow &

Homans, for plaintiffs.

Dana Malone, Atty. Gen., and Fred T. Field, Asst. Atty. Gen., for defendants.

OPINION

RUGG J.

This is a proceeding in equity against the board of harbor and land commissioners, under Rev. Laws, c. 96, § 7, which provides that, 'if the commonwealth has the right under stipulations in a deed given in its name to enter upon premises and, at the expense of the party at fault, to remove or alter a building, any of its grantees under similar deeds their heirs, legal representatives or assigns, may institute proceedings in equity to compel said board to enforce such stipulations.' It is conceded that the plaintiffs belong to the class enabled by this section to institute proceedings under it. They claim that one Safford has, contrary to the condition inserted in the deed from the commonwealth through which he claims as heir or assign erected a fire escape over a certain passageway in the rear of his estate on Newbury street, and that, having asked the respondents to enter upon the premises of Safford and remove the fire escape, and the board having refused to comply with the request, this bill is brought. The reason given by the board for their refusal to act is that they are doubtful of their right to proceed in the premises, for that the passageway originally laid out by the commonwealth and required to be kept open by its deed, has been laid out as a public alley by the city of Boston under St. 1898, p. 230, c. 298, and that the premises of Safford, upon which the petitioners claim the obstruction of the passageway exists, is subject to St. 1892 p. 494, c. 419, § 82, St. 1897, p. 305, c. 310,§ 1, and St 1900, p. 263, c. 335, § 2, whereby the owner was obliged to construct fire escapes, and the board is ignorant whether under provisions of these several statutes it has a right to proceed as the plaintiffs request. The petitioners urge that it is the duty of the respondents to take down the obstructions and relieve them from the expense and responsibility of this proceeding. The respondents are a public board charged with important duties in respect of the stipulations contained in deeds like those referred to in the bill. They would have the right to take the initiative. The Attorney General might institute proceedings in...