Marcus v. Brody
| Decision Date | 01 December 1925 |
| Citation | 254 Mass. 152,149 N.E. 673 |
| Parties | MARCUS v. BRODY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; Weed, Judge.
Suit in equity by Bessie Marcus against Isaac E. Brody to require defendant to remove structure encroaching on plaintiff's land and to change construction of building and driveway so that no water therefrom should flow on plaintiff's land. Decree for plaintiff in relief less than prayed for, and she appeals. Decree modified, and as so modified affirmed.
J. W. Tushins, of Boston, for appellant.
John R. Murphy, of Boston, for appellee.
The plaintiff and defendant are the owners of adjoining lots fronting on Glenway street, Dorchester. In March, 1924, the defendant began the erection of a garage on the rear of his lot. The garage ‘was 25 by 20 feet with two stalls, built of concrete blocks set on a concrete foundation, with concrete floor and a reinforced concrete roof.’ The water from the roof flows through a conductor at the corner of the building next to the plaintiff's land, and the slope of the land is such that the water ‘is delivered in a stream onto the plaintiff's lot.’ Conductors on the defendant's house next to the plaintiff's land, gather the rain water falling on the roof and discharge it through spouts on the granolithic driveway in such a way as ‘to reach the plaintiff's land in well defined streams.’
The garage was finished in May, 1924. In April the plaintiff had her lot surveyed. It was found by the presiding judge that the rear of the garage extended onto the plaintiff's lot, the foundations extending 4 1/4 inches and the wall 2 1/8 inches; that the foundations at the front of the garage extended over 2 1/2 inches onto the plaintiff's land and the wall at this point extended 1/2 of an inch on the plaintiff's land; that the concrete driveway ‘was over 2 1/2 inches in front of the garage running to nothing at a point near the rear of the house.’
When the erection of the garage was begun, its location was designated by the defendant's architect in the presence of the plaintiff's husband ‘without objection on his part.’ It was further found that the encroachment by the defendant was innocent and ‘not intentional and was not known to him until said survey was made and his attention was directed to it by the plaintiff’; that when the encroachment was discovered, the foundations, walls and floors of the garage had been completed and the roof partially constructed; that the plaintiff demanded the defendant to remove the portion of the garage which projected onto her land; and that this notice was disregarded and the garage completed. He further found that the land ‘so encroached upon is approximately five square feet and of the value of $5’; that the cost of removing that portion of the garage and driveway located on the plaintiff's land would be $500; and that the cost of removing the obstructions when first discovered would have been $300.
The plaintiff asks for the removal of the part of the garage encroaching on her land, and a change in the construction of the conductor and garage so that no water shall flow therefrom upon her land; and that the driveway be so reconstructed as to stop the flow of water on her land. A decree was entered for the plaintiff restraining the defendant from discharging water from the house and garage conductors upon the plaintiff's land; ordering the defendant to pay the plaintiff damages for the injury sustained; and ordering the defendant to remove the part of the garage and driveway upon the plaintiff's land ‘unless the defendant shall pay to the plaintiff the sum of five ($5) dollars damages and $36.50 costs * * * within thirty days of the entry of this...
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Geragosian v. Union Realty Co.
...169 Mass. 492, 494, 48 N.E. 278,61 Am.St.Rep. 298; Cobb v. Massachusetts Chemical Co., 179 Mass. 423, 426, 60 N.E. 790; Marcus v. Brody, 254 Mass. 152, 155, 149 N.E. 673; Tyler v. City of Haverhill, 272 Mass. 313, 315, N.E. 342. Other cases point out that, since trespassing structures const......
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...unless perhaps the disparity between cost of removal and the inconvenience to plaintiff is very great. See Mulrein v. Weisbecker, and Marcus v. Brody, supra. In our own case Lewis v. Pingree Nat. Bank, supra, this court recognized the "balance of injury" theory as designated by Pomeroy (5 P......
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