MacLeod v. Davis

• Decision Date: 30 March 1935
• Citation: 290 Mass. 335,195 N.E. 315
• Parties: MacLEOD v. DAVIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

290 Mass. 335

195 N.E. 315

MacLEOD v. DAVIS.

Supreme Judicial Court of Massachusetts, Barnstable.

March 30, 1935

Suit in equity by Katherine MacLeod against Cora Davis. From a final decree of the superior court which modified the master's report and dismissed the bill with costs plaintiff appeals.

Interlocutory and final decrees reversed, master's report confirmed without modification, and final decree ordered entered for plaintiff.

Appeal from Superior Court, Barnstable County Donahue, Judge.

V. P Clarke, of Boston, for appellant.

H. J. Winslow and O. K. Nellson, both of Boston, for appellee.

LUMMUS, Justice.

In 1896 the Center Church, and one Kemp, the predecessor in title of the plaintiff, owned separate lots of land on the northerly side of Commercial street in Provincetown. One Chase, the first husband of the defendant and her predecessor in title, owned land on the southerly side of Commercial street, running down to the harbor. Chase orally made an ‘ agreement’ whereby he ‘ granted permission’ to Kemp and the Center Church to run a sewer drain from their lots across Commercial street and through Chase's land to the harbor. Chase himself connected his house with the drain. In 1899 Chase died, and the defendant succeeded to his title. In 1902 and 1908 other owners of houses on the northerly side of Commercial street connected them with the drain. In 1904 and 1928 the town of Provincetown connected catch basins in Commercial street with the drain, in order to carry off surface water. In the latter year, at least, this was done at the request of the defendant. From 1896 until 1930 all the persons whose buildings were connected with the drain enjoyed the free use of it without objection.

In 1931 and 1932 the catch basins overflowed as a result of excessive rains, and on one occasion in the fall of 1932 the water was about two inches deep in the street, had an offensive odor, contained leaves, twigs, sewage and paper, and overflowed the defendant's land. In November, 1932, the defendant caused the drain to be closed up at the edge of her land at the street, so that it could no longer be used. The plaintiff brought this bill to compel the opening of the drain.

The master found that the drain had been used without interruption by the plaintiff and her predecessors in title for more than thirty years and until 1932 openly, adversely and under a claim of right, with the acquiescence and knowledge of the defendant and her predecessor in title. The judge modified the master's report by finding that the plaintiff's use of the defendant's land for a drain ‘ was permissive in its origin and has never ceased to be permissive,’ and dismissed the bill with costs. The plaintiff appealed.

Questions of fact arising on the face of a master's report are open for decision by the judge, and also by this court on appeal, and both the judge and this court on appeal may draw additional or different conclusions of fact from facts found by the master. Robinson v. Pero, 272 Mass. 482, 484, 172 N.E. 599; Ryder v. Donovan, 282 Mass. 551, 554, 185 N.E. 473; Hannah v. Frawley, 285 Mass. 28, 31, 188 N.E. 385; Jason v. Jason (Mass.) 193 N.E. 554. The master's finding of subsidiary facts, which ordinarily cannot be attacked because the evidence is not reported, prevails over any conclusion reached by him, inconsistent with the subsidiary facts found. Young v. Winkley, 191 Mass. 570, 573, 78 N.E. 377; Craig v. Warner, 216 Mass. 386, 393, 103 N.E. 1032; Arcisz v. Pietrowski, 268 Mass. 140, 146, 167 N.E. 298; Vinal v. Gove, 275 Mass. 235, 242, 175 N.E. 464; Glazer v. Schwartz, 276 Mass. 54, 56, 176 N.E. 613. See, also, Nelson v. Belmont, 274 Mass. 35, 39, 174 N.E. 320; Lawyers' Mortgage Investment Corp. of Boston v. Paramount Laundries, Inc., 279 Mass. 314, 319, 181 N.E. 262. A master is not always required to find subsidiary facts by which the validity of his general findings may be tested. It would be impracticable for him to analyze every finding into its constituent elements, or to change the figure, to exhibit the entire structure of evidence and inference upon which every finding rests. Haskell v. Merrill, 179 Mass. 120, 123, 60 N.E. 485; Prudential Trust Co. v. McCarter, 271 Mass. 132, 139, 171 N.E. 42. Whether, or how far, he shall be required to do that with respect to any finding, rests in the discretion of the court that appointed him. Epstein v. Epstein (Mass.) 191 N.E. 418; Pearson v. Mulloney (Mass.) 194 N.E. 458. On vital points, where the propriety of the conclusion may be doubtful, some refinement in analysis is just and reasonable, and is likely to be required. Pray v. Brigham, 174 Mass. 129, 54 N.E. 338; Wilson v. Jones, 280 Mass. 488, 182 N.E. 917.

A general finding upon an issue, or any other finding capable of analysis, is as conclusive, in the absence of the evidence, or of inconsistent subsidiary findings, as though it were a finding of the smallest and most elementary fact. Davenport v. King, 273 Mass. 31, 34, 172 N.E. 878; Shapira v. Budish, 275 Mass. 120, 125, 175 N.E. 159; Dobias v. Faldyn, 278 Mass. 52, 56, 179 N.E. 219. This is true even though the finding expresses in a word or phrase a conclusion of law from facts, and thus contains an admixture of law. Haskell v. Merrill, 179 Mass. 120, 123, 60 N.E. 485; Morrell v. Kelley, 157 Mass. 126, 31 N.E. 755; Pray v. Brigham, 174 Mass. 129, 54 N.E. 338; Seemann v. Eneix, 272 Mass. 189, 191, 172 N.E. 243; Dobias v. Faldyn, 278 Mass. 52, 56, 58, 179 N.E. 219; Tortorella v. H. Traiser & Co., Inc., 284 Mass. 497, 500, 188 N.E. 254, 90 A.L.R. 1203. It is only where the general finding purports to be a mere conclusion from subsidiary facts fully stated, that the judge or this court on appeal can draw the opposite conclusion from the same subsidiary facts. Nichols v. Atherton, 250 Mass. 215, 217, 145 N.E. 277; Storey v. Brush, 256 Mass. 101, 104, 105, 152 N.E. 225; Robinson v. Pero, 272 Mass. 482, 484, 172 N.E. 599; Hannah v. Frawley, 285 Mass. 28, 31, 188 N.E. 385; Titcomb v. Carroll, 287 Mass. 131, 191 N.E. 410.

In the present case, the ultimate finding of the master that the use of the drain for more than thirty years was open, adverse and under a claim of right, with the knowledge and acquiescence of the defendant and her predecessor in title, did not purport to be a mere conclusion from subsidiary facts fully stated, but was declared to be based ‘ on all the evidence.’ Neither the defendant nor the superior court sought to require the master to state all the subsidiary facts upon which the finding was based. The report contains no subsidiary findings so inconsistent with the ultimate conclusion that it cannot stand.

The subsidiary finding that ‘ the respondent [defendant] and her predecessors in title during these years never spoke to the complainant [plaintiff] or any of the other joiners objecting to the use of the drain,’ tends in...