Mari v. Lankowicz

• Citation: 200 A. 953
• Decision Date: 16 July 1938
• Docket Number: No. 1381.,1381.
• Parties: MARI et ux. v. LANKOWICZ et ux.
• Court: United States State Supreme Court of Rhode Island

200 A. 953

MARI et ux.

v. LANKOWICZ et ux.

No. 1381.

Supreme Court of Rhode Island.

July 16, 1938.

Appeal from Superior Court, Providence and Bristol Counties; Alexander L. Churchill, Judge.

Suit in equity by Guiseppe Mari and wife against Basil Lankowicz and wife to settle the boundary line between the parties' adjacent lots. From a decree in favor of the complainants, the respondents appeal.

Appeal sustained, decree reversed and cause remanded with directions to dismiss the bill.

Benjamin Cianciarulo, of Providence, for complainants. William S. Flynn, of Providence, for respondents.

CONDON, Justice.

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This is a bill in equity brought for the purpose substantially of settling the boundary line between complainants' and respondents' adjacent lots of land situated on McDonough street in the city of Providence. The cause was heard in the superior court on bill, answer, replication and proof and resulted in a decision for the complainants and the entry of a decree thereon granting them the relief which they prayed for. From this decree respondents appealed and have duly prosecuted their reasons of appeal to this court.

Respondents rely on the following reasons in their claim of appeal, namely, that the decision of the trial justice is against the evidence and the weight thereof and that the decree entered on such decision is not based on the findings therein and is therefore erroneous.

The complainants, in reply, contend that the findings of the trial justice are reasonably supported by the evidence and that therefore his decision should not be disturbed unless it is clearly wrong. They also argue that, on the facts brought out in evidence, they were clearly entitled to a decision in their favor, as the law applicable thereto has been clearly laid down by this court in what, they assert, were identical situations in the following cases: O'Donnell v. Penney, 17 R.I. 164, 20 A. 308; Faulkner v. Rocket, 33 R.I. 152, 80 A. 380; Aldrich v. Brownell, 45 R.I. 142, 120 A. 582; Doyle v. Ralph, 49 R.I. 155, 141 A. 180; Di Santo v. De Bellis, 55 R.I. 433, 182 A. 488. The respondents do not question the law of these cases but they do dispute the complainants' claim that the facts in any of them are like those of the instant case.

The undisputed facts in this case appear to be these: On March 28, 1925, the complainants became the owners in fee of certain real estate situated on McDonough street in the city of Providence and described as Lot No. 64 on the "Plat of the Eagle Steam Mill Estate in Olneyville". Their immediate predecessor in title was Antonio Papa, who had owned the lot from September 27, 1923 until he conveyed it to the complainants. The respondents bought the adjacent lot on the east from a man named F. Boule in the year 1925. This grantor had owned it a number of years before selling to the respondents, having bought it from his nephew, Simon Boule, who testified in this case for the respondents that his father owned it before him since the year 1910. Simon Boule also testified that he lived on the premises from 1910, at first with his father, later as owner and finally as agent for his uncle, F. Boule, until 1925 when his uncle sold to the respondents, Basil and Stephanie Lankowicz.

On the respondents' premises there were two houses, one in the front of the lot near McDonough street and the other in the rear near Willow street. This latter house was built close to the east boundary line of the complainants' lot, as shown by the plat. Each of these adjoining lots was bounded on the north by McDonough street and on the south by Willow street. That part of the boundary line from McDonough street southerly to or nearly to the northerly line of the rear house was marked by a picket fence that was built by Simon Boule some time before either of the parties to the present controversy had become owners of their respective lots. This fence, it is admitted, does not stand altogether on the true boundary line between the lots as shown by the recorded plat but veers in places several inches over on the complainants' side and in other places it does the same on the respondents' side. The surveyors, who testified, described it as following an irregular line. The builder of the fence, Simon Boule, testified that a surveyor had informed him this fence was not on the line. It is also admitted, however, that the present parties have accepted this fence for a period of over ten years as the dividing line between their premises as far as the fence extends. There is then no dispute about this fence.

The conflicting testimony revolves around the real matter in controversy, which is whether or not a, fence existed from the northerly line of the rear house on the Lankowicz lot to Willow street and whether it was acknowledged or acquiesced in by the respondents as the occupation line of their lot. That no fence existed there at the time of the bringing of this suit was admitted by the complainant Guiseppe Mari. He also testified on cross-examination that there was no fence there when he purchased the property in 1925. His son Genaro Mari also testified to that effect.

Antonio Papa, who testified only in rebuttal for the complainants, testified that there was a fence on that portion of the boundary when he bought the property in 1923. He also testified that it was there when he sold the property to Mari in 1925, although he admitted that before that time it was considerably broken down by persons who had taken the boards for firewood.

This witness, on cross-examination, left his testimony in...