Melville Shoe Corp. v. Kozminsky

• Decision Date: 28 June 1929
• Citation: 167 N.E. 305,268 Mass. 172
• Parties: MELVILLE SHOE CORPORATION v. KOZMINSKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 172

167 N.E. 305

MELVILLE SHOE CORPORATION

v.KOZMINSKY.

Supreme Judicial Court of Massachusetts, Suffolk.

June 28, 1929.

Appeal from Superior Court, Suffolk County; Louis S. Cox, Judge.

Suit by the Melville Shoe Corporation against Harry Kozminsky. From a decree dismissing the bill, plaintiff appeals. Affirmed.

J. P. Vaccaro and J. P. Rooney, both of Boston, for appellant.

M. Caro and G. Broomfield, both of Boston, for appellee.

CROSBY, J.

[1] This is a bill in equity wherein it is alleged that the plaintiff is lessee of a part of a small building in the rear of the building numbered 295 and 297 Washington street, Boston, together with a right of way through the passageway leading to this building from School street; that the plaintiff has a right to pass over the said passageway; that the defendant at lessee and occupant of the store on the street floor of the building ‘number 8 and/or 8a on said School Street’ has so arranged, laid out and planned said store that it appears that the passageway is part of the store. The plaintiff prays that the defendant be enjoined from obstructing the passageway, or using it in a manner inconsistent with the rights of the plaintiff, and that the defendant be ordered to change his store so that the passageway will not appear to be a part of his store. The case was heard by a judge of the superior court, who made findings of fact, and entered a decree dismissing the bill. As the evidence is not reported, the findings of fact must be considered as final. The only question before this court is whether, upon the facts found, the decree was rightly entered. Nelson v. Wentworth, 243 Mass. 377, 137 N. E. 646;In re Commissioner of Banks in re Cosmopolitan Trust Co., 249 Mass. 144, 144 N. E. 73;Wood v. Culhane (Mass.) 164 N. E. 622.

The facts found in substance are as follows: ‘In 1754 John Doan owned a parcel of land in Boston at the southerly corner of Marlborough (now Washington) and School Streets. The Inches family owned the parcel adjoining on Marlborough Street, both parcels extending westerly toward Tremont Street some 125 feet. In that year the said Doan and his wife Jane executed an instrument which is dated the second day of May,’ by which they granted to the Inches family ‘the free and uninterrupted use & privilege of a passageway of four feet and an half wide leading from their house and land into School Street between the two brick walls as they now stand,’ and convenanted that the Inches family ‘their heirs and assigns shall and may from time to time and at all times forever hereafter by force and virtue of these presents lawfully peaceably and quietly use occupy improve and enjoy with us and our heirs the passageways aforesaid without any manner of let hindrance or molestation whatsoever. The passageway leading from the Inches land to School street is the one involved in this suit.

The ownership of the ‘Inches land’ has remained in that family to the present time. The Doan parcel was partitioned in 1767, and all the partition deeds refer to the passageway, and each of the grantees under the partition was given the right to use the passageway. The locus of the passageway can be determined. The title to the Doan parcel as it stood in its entirety in 1754 was acquired between 1794 and 1802 by one Greenough, and remained in his family until January, 1902, when it was conveyed to the trustees of the Trimountain Trust. The passageway in question was included in this conveyance. On October 1, 1902, an agreement was entered into between the ‘Owners of the Inches estate’ and the trustees of the Trimountain Trust, owners of the fee in the passageway, whereby the owners of the ‘Inches land’ permitted the Trimountain Trust to cover over a portion of the same with a glass roof, and to repave the passageway, the agreement expressly providing that these acts should not affect the rights of the ‘Owners of the Inches Estate’ in said passageway. The ownership of the properties involved, so far as appears from the record, still remains in the same parties as in 1902, the Trimountain Trust owning the servient tenement and the Inches family owning the dominant tenement. ‘At some time after the above-described indenture was executed and recorded, a glass roof was installed over that part of the passageway which extended from the rear wall of the building overhanging the School Street end of the passageway to the northerly wall of the building on the Inches land.’ The defendant has a store at 8A School street which includes the passageway.

The trial judge viewed the premises. He found that ‘There is a door in the Inches building, now nailed up, which open upon the southerly end of the passageway’; that ‘the easterly part of the front of the defendant's store is a show window, and where the passageway began there is a stone threshold and a recessed door, so that today, as one looks from School Street, there is no sign of any passageway, but on the contrary a complete store front with signs above’; that ‘inside the store the passageway is paved with brick’ and ‘the floor of the store is of wood’; that at the end of the store ‘there is a double fire door which extends from the floor nearly to the ceiling’; and which ‘is directly opposed to and against the door in the Inches building above described’; that the building on the Inches land now covers the entire Inches parcel and is several stories in height. There was no evidence offered as to when or by whom this store front was installed, but the defendant and his father have occupied the store for at least twenty-six years; no evidence was introduced as to what use, if any, was ever made of the passageway before the erection of the store front; and apart from the inference which may be drawn from the agreement of 1902 between the several trustees hereinbefore described, ‘there is nothing to aid the Court in determining whether the store front, as it now stands, has been in existence more than twenty-six years.’ At present ‘the passageway space is occupied by stands and shelves, upon which are displayed the flowers and wares which the defendant sells.’ The judge found that ‘for at least twenty-six years, the passageway in question has, to all intents and purposes, been a part of a store, the only entrance to which was through the door on School Street, unless it can be said that there was an entrance from the Inches building through a door which would have to be broken down and through the double fire door.’ There is no evidence to show any of the dealings of the respective owners of the Inches land or of the Doan parcel from 1902 until December 1, 1923, except that the defendant and his father occupied the premises on School street was above described.

On August 14, 1924, the Trimountain Trust, the owners of the servient tenement, leased to D. A. Schulte, Inc. the land and buildings at the corner of Washington and School streets, ‘subject to such rights of way as the owners of the adjoining Inches estate may have in the 4 1/2-foot passageway, now covered over extending from said Inches estate to School Street,’ as set forth in the agreement of 1902 between the Trimountain Trust and the Inches family. On May 22, 1925, D. A. Schulte, Inc. sub-leased to the defendant the ‘store on the street floor as now partitioned off and known as and numbered A (8A) on School Street in Boston, Massachusetts,’ subject also to such right of way as the owners of the Inches estate may have in the passageway, it being ‘understood and agreed that the Lessee shall make his own arrangements with the Owners of the Inches estate or those claiming under them for the exclusive use of and right of way in, through and upon the said four and one-half foot (4 1/2') passageway, and will pay all charges made by them therefor.’ This lease was for ten years, beginning October 1, 1927.

Respecting the occupancy of the Inches estate an instrument was introduced in evidence dated December 1, 1923, which recites that ‘Whereas the lessors, ‘doing business as Sam A. Beckhard & Co., at Boston, are the lessees of an estate at 295-297 Washington Street, in said Boston, Mass., and as such are vested with the right of way, through a passageway from said estate to School Street, in said Boston; and whereas Harry Kozminsky [defendant], of Boston, aforesaid, desires exclusive use of said right of way through and upon said passageway which is...