Matteodo v. Pesce

• Decision Date: 29 June 1942
• Docket Number: No. 1609.,1609.
• Citation: 27 A.2d 109
• Parties: MATTEODO et al. v. PESCE et ux.
• Court: Rhode Island Supreme Court

27 A.2d 109

MATTEODO et al.

v. PESCE et ux.

No. 1609.

Supreme Court of Rhode Island.

June 29, 1942.

Appeal from Superior Court, Providence and Bristol Counties; Alberic A. Archambault, Judge.

Bill in equity by Eugenia Matteodo and others against Giuseppe Pesce and wife to enjoin threatened interference with an alleged easement of gas, water, and drain pipes. From a decree of dismissal, complainants appeal.

Appeal sustained and decree reversed.

Vincent P. Marcaccio, Jr., of Providence, for complainants.

Judah C. Semonoff, of Providence, for respondents.

CONDON, Justice.

This is a bill in equity to enjoin threatened interference by the respondents with an alleged easement of gas, water and drain pipes. Respondents, in their answer, denied the existence of such an easement and further averred therein that complainants' claim was res adjudicata. After a hearing on bill, answer, replication and proof in the superior court, the respondents' contentions were sustained and a decree was entered denying and dismissing complainants' bill. From this decree complainants have appealed to this court.

Complainants are the owners of a lot of land situate on the southerly side of Ledge street in the city of Providence, laid out and numbered as lot No. 476 on assessors' plat 71 of said city, and they also own another lot of land situate on the northerly side of Gillen street in Providence and laid out and numbered as lot No. 154 on said assessors' plat 71. On these premises are several tenement houses which are served by gas, water and drain pipes which run through a lot, belonging to the respondents, situate on the southerly side of Ledge street in Providence, laid out and numbered as lot No. 153 on said assessors' plat 71. Complainants, by their bill, claim an easement in this lot for the service of their premises by such pipes which, they aver, have been there for a period of over thirty years under a claim of right, without the consent or permission of anyone, either the respondents or their predecessors in title.

Complainants previously claimed title to lot 153 by right of adverse possession, but such claim was finally denied by this court in Matteodo v. Ricci, R.I., 148 A. 33. Later complainants were defendants in an action of trespass and ejectment brought by Ricci and judgment was entered against them. That judgment was affirmed by this court in Ricci v. Matteodo, 53 R.I. 448, 167 A. 125. Thereafter complainants brought a bill in equity against Ricci to establish an easement of way over lot 153, which was denied and dismissed after a hearing on bill, answer and proof in the superior court. That decree of the superior court was affirmed by this court on appeal in Matteodo v. Ricci, 56 R.I. 208, 184 A. 573.

In the instant cause the respondents contended in the superior court and in this court that, by virtue of the decision in 56 R.I. 208, 184 A. 573, the complainants' present claim of an easement was res adjudicata. They further contended, assuming the question of res adjudicata was decided adversely to them, that the complainants had not, as a matter of fact, made out any right to such easement. The superior court sustained their contention that the cause was res adjudicata and denied and dismissed the bill of complaint.

In support of the superior court's decree, respondents argued here that the complainants' cause of action is the same as that alleged in their bill in Matteodo v. Ricci, 56 R.I. 208, 184 A. 573, and that the issue raised by them in the instant cause was necessarily involved and passed upon adversely to them in the prior cause. Respondents contend that "in either event the estoppel of the judgment in the former case should be applied in the instant case."

In their attack upon the superior court's decree, the complainants contend that their bill is based upon a different cause of action than that alleged in their prior bill. They also contend that the precise issue involved here was neither presented to the court in the prior case nor was it passed upon by the court. They point out, in support of their contentions, that the prior bill sought only to establish an easement of way, whereas in the instant bill they seek to have the respondents enjoined from interfering with an easement of gas, water and drain pipes in their lot.

Complainants further claim such easement by right of prescription at common law by reason of the apparent, open, notorious, uninterrupted and exclusive user of said pipes in said lot for a period of over thirty years. They further point out that there was no need until the filing of the instant bill to take action to protect their right to such easement since it had never before been interfered with, threatened, or even questioned by anyone. They also argue that they could not have included the present claim in their prior bill to establish their alleged easement of way over this same lot of land because to have done so would have subjected the bill to the objection of multifariousness.

In answer to these contentions, respondents point out that, in the prior cause reported in 56 R.I. 208, 184 A. 573, there are to be found four specific reasons in support of their contention that the easement now claimed by complainants was decided in that cause. These reasons are substantially as follows: (1) That the claim was set forth in the bill of complaint in the allegation, "that at the time of the construction of said house, i. e., 1904, water, gas and drain pipes to and from said houses were laid in, along, upon or across said lot." (2) That there was testimony offered to prove this allegation as follows: "Q. And what use did you put this strip to that makes you consider that you used it as the owner of it? A. Well, we used it to go through on foot and in vehicles and we used it to hang our clothes up. We had five clothes lines strung diagonally across this parcel—clothes line posts. And we had laid gas, water and sewer pipes through there." (3) That the justice of the superior court mentioned the claim in his decision in these words: "The Court: In cases of easement you have got to have a dominant and servient tenement, the dominant estate taking the benefit of the advantage that the servient estate must yield whether it is a right of way on foot or teams, or gas mains or water mains." (4) That in 56 R.I. 208, 184 A. 573, 575, this court discussed the claim in its opinion as follows: "In the instant case, on the contrary, it is clear from the evidence that the lot in question, over which the complainants now claim right of way, is precisely the same as the one to which in their former case they asserted title in fee by adverse possession; that it has not been separated in any perceptible way from the land owned by them in fee to which they now claim the right of way to be appurtenant; that they have used it constantly as an integral part of that land, and not only for purposes of passage, but as a playground for their children, a drying yard for clothing, putting up across it for that purpose ropes, which would prevent it from being used for passage; and that they have thus and otherwise used it for purposes which are inconsistent with its use for a right of way and with any claim by them to an easement therein."

A careful reading of our entire opinion in that case will disclose that we considered and decided but one question, namely, whether or not the complainants...