Milton v. Puffer

• Decision Date: 05 January 1911
• Citation: 93 N.E. 634,207 Mass. 416
• Parties: MILTON v. PUFFER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 416

93 N.E. 634

MILTON v. PUFFER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 5, 1911

COUNSEL

Charles F. Smith, for plaintiff.

I. R Clark and G. F. Ordway, for defendants.

OPINION

MORTON J.

The plaintiff and the defendants' intestate, whom we shall speak of as the defendant, owned adjoining estates on Irving street, Boston. On the premises of the defendant was a brick building which he had erected after he acquired title in 1896, the face of the southerly wall of which coincided with the dividing line between the two estates. The plaintiff acquired title in 1905 and immediately began the erection of a brick building according to plans which contemplated that the northerly foundation and wall should be up to and flush with the northerly line of her land and the dividing line between the two estates. In excavating for the foundations the plaintiff found that all along the dividing line the foundation stones of the defendant's building projected irregularly into her land from 10 to 12 inches and interfered materially with the construction of her building. Thereupon she complained to the defendant, and after a delay which inflicted upon her, as the plaintiff contended, a substantial loss, the defendant caused the stones to be cut off up to the dividing line except for a distance of 12 or 14 feet near the front of the two estates, where the building inspector of the city of Boston refused to allow it to be done on the ground that owing to the peculiar nature of the foundation of the defendant's building at that point it would tend, if done, to weaken the wall of the defendant's building. In consequence thereof the plaintiff was subjected, as she alleges, to additional expense in the erection of her building, which she seeks to recover in this action with other expenses and damages, alleged to have been caused by the projection of the stones into her land and the maintenance of them there. At the conclusion of the plaintiff's evidence the presiding justice ruled that the plaintiff was not entitled to recover, and directed the jury to return a verdict for the defendant. The case is here upon exceptions by the plaintiff to this ruling and direction. We think that the ruling and direction were wrong.

Projecting the stones into the adjoining land without a right or license from the owner to do so was a wrongful act on the part of the defendant, and the maintenance...