New York Cent. R. Co. v. Ayer

• Decision Date: 29 June 1925
• Citation: 253 Mass. 122,148 N.E. 567
• Parties: NEW YORK CENT. R. CO. et al. v. AYER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 122

148 N.E. 567

NEW YORK CENT. R. CO. et al.

v.AYER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1925.

Error to Supreme Judicial Court, Suffolk County; John C. Crosby, Judge.

Suit by the New York Central Railroad and another against James C. Ayer and others to enjoin encroachments on a passageway in which plaintiff had easement. To reverse final decree entered on petition for attachment for contempt, complainants bring writ of error. Writ dismissed.

C. O. Pengra, of Boston, for plaintiffs in error.

M. M. Johnson, of Boston, for defendants in error.

RUGG, C. J.

This is a writ of error. It is brought to reverse a final decree entered upon a petition for attachment for contempt in a suit in equity which has been before this court in other aspects and is reported in 239 Mass. 70, 131 N. E. 325, and in 242 Mass. 69, 136 N. E. 364. The case was brought in order to enforce the rights of the plaintiffs to have a strip of land ten feet wide on the defendants' land, being one-half of a 20-foot passageway over which the plaintiffs have rights, kept open and unobstructed. The plaintiffs prevailed on the merits of the main action. The final decree after the last rescript ordered the defendants ‘to cause the removal * * * of * * * the hatchway about 4 feet square in the concrete sidewalk * * * [and] filling or covering all excavations in such a way as to render the passageway substantially as firm, sound, and convenient for passage on foot and by teams and trucks as it was on April 18, 1899.’

The single justice on the petition for attachment for contempt found and ruled with respect to this matter:

‘That the hatchway in the concrete sidewalk on the westerly side of the Lenox Hotel building has not been removed and that the decree has not been complied with by ‘filling or covering all excavations in such a way as to render the passageway substantially as firm, sound and convenient for passage on foot and by teams and trucks as it was on April 18, 1899.’ It is the contention of the petitioners that by the terms of the decree the hatchway is to be removed. It was said in the last opinion in this case, 242 Mass. 69, at page 74, 136 N. E. 364, that ‘they [the defendants] are the owners of the fee of the strip of land ten feet in width adjacent to their main lot, being one-half of the passageway. By virtue of such ownership they have the right to make any reasonable use of the land covered by that part of the passageway not inconsistent in law with the paramount easement owned by the plaintiffs. The terms of that paramount easement require them to keep their part of the passageway open above the ground. But the defendants may surface the part of the passageway of which they own the fee in any appropriate way so long as passage over it is left safe and convenient and adapted for the uses for which it was established.’ In view of the foregoing statement in the opinion, considered in connection with the language of the final decree, after rescript, I am of opinion and rule that the defendants are entitled to maintain the hatchway, provided it is covered in such a manner as to make that part of the passageway at all times as safe and convenient for passage on foot and by teams and trucks as it was on April 18, 1899. I find that the cover over this hatchway, consisting of steel three-eighths of an inch in thickness is not a compliance with the decree, and while safe and convenient to pass over by persons on foot is entirely inadequate and unsafe for passage by trucks. This conclusion is in accordance with the testimony of expert witnesses called by both parties. I further find that the defendants have failed to cover this hatchway with suitable material to render it safe within a reasonable time after July 15, 1922, and that by reason of such failure they are in contempt.'

This interpretation of the decree was erroneous. The words of the decree are unequivocal and positive to the effect that the hatchway must be removed. The manifest purpose of the decree in the light of the two opinions of the full court was to assure to the plaintiffs freedom of passage over that part of the way occupied by the hatchway, but not to require the defendants to fill with earth the space underneath the hatchway, provided without doing that the passageway could be made safe for the passage of heavy trucks. The right of way of the plaintiffs over the surface of the passageway was to be uninterrupted by the opening of the hatch and its use for the purposes for which a hatchway is commonly used.

As to another ground of complaint urged by the plaintiffs, the single justice found that:

‘The defendants have failed to comply with the terms of the decree which ordered them to ‘cause that portion of the passageway on the southerly side of said building occupied by a flight of steps leading downward, being 10 feet long by 4 feet wide, by the openwork iron grating near the head of the stairs toward Exeter street covering an open area or air well 4 feet wide and 8 feet long and the curbing or wall which runs around this area, to be filled or covered and strengthened so as to render those parts of the passageway substantially as firm, sound and convenient for passage on foot and by teams and trucks as it was on April 18, 1899, and as reasonably usable for such passage in connection with the rest of the passageway as it was on that date, the level of said portion of the passageway to be so changed as to be made to conform substantially to the level of the passageway on that date, and all structures to be removed so far as necessary to that end.’ I find and rule that the defendants have covered by concrete the open space from the head of the stairs toward Exeter street in compliance with the decree; that they maintain the stairway with a cover over it, and also maintain an elevator for lowering and raising trunks and other articles to and from the sidewalk and the basement of the hotel; that this elevator is closed with a cover over it substantially on a level with the sidewalk when not in use; that the stairway and elevator well when closed are covered by steel doors; that these covers, while suitable and sufficient for foot passage, are not of the required thickness and strength to make the passageway safe and convenient for heavy trucks; that the defendants have failed to comply with the decree in not placing over said openings suitable and sufficient doors or covers within a reasonable time from and after July 15, 1922, and are in contempt by reason of such failure. I rule that if safe and sufficient covers are placed over the stairway and elevator well that the decree will be complied with.'

Here also there was error in the interpretation of the final decree. In the decision in 239 Mass. 77, 131 N. E. 327, in explaining and delimiting the scope of the words creating the grant and reservation, it was held that they ‘import an intent of the parties that the entire passageway and not a convenient part of it...