Newport Yacht Club, Inc. v. Deomatares

• Decision Date: 29 May 1961
• Docket Number: No. 2911,2911
• Citation: 171 A.2d 78,93 R.I. 60
• Parties: NEWPORT YACHT CLUB, INC. v. John D. DEOMATARES et al. Equity
• Court: Rhode Island Supreme Court

Page 78

171 A.2d 78

93 R.I. 60

NEWPORT YACHT CLUB, INC. v. John D. DEOMATARES et al.

Equity No. 2911.

Supreme Court of Rhode Island.

May 29, 1961.

Sheffield & Harvey, Richard B. Sheffield, Newport, for complainant.

Moore, Virgadamo, Boyle & Lynch, Jeremiah C. Lynch, Jr., Newport, for respondents.

PAOLINO, Justice.

This is a bill in equity to enjoin the respondents from mooring their fishing boats to the east face of the dock at the city yard in the City of Newport. After a hearing in the superior court on bill, answer, replication and proof a final decree was entered granting the complainant's prayers for a permanent injunction. The cause is before this court on the respondents' appeal from that decree.

The complainant alleges that on April 4, 1957 it was granted a lease by the city of Newport for the term of 15 years of a certain parcel of land measuring 105 feet square and situated at the southeast corner of the city yard; that in addition the lease provided that complainant was to have control of 215 feet of the easterly face of the city yard beginning at the southeast corner thereof and running in a northerly direction; and that on or about April 5, 1957 it entered upon and took possession of the premises under the terms of the lease and has ever since been exercising control over said premises and easterly face.

The complainant further alleges that respondents have moored and continue to moor their boats to the east face in violation of its rights to have said east face kept free and unobstructed for its own use; that it has notified respondents by mail that it was exercising control thereof and that mooring boats without its consent would lead to legal proceedings; that in spite of such notices respondents have used and appropriated to their own use the area in question; and that it believes that respondents intend to continue to do so.

In their answer respondents deny complainant's right to control the portion of the east face in question. They admit that they have moored and continue to moor their boats to a certain portion thereof and they aver that they intend to continue so doing unless it is determined by the proper tribunal that they have no right to do so. In addition they set up an affirmative defense by their averment that by deed dated June 8, 1960 Leo B. Amado conveyed to two of the respondents a portion of one of the lots delineated on a certain plat of Gravelly Point as contained in original records of the Proprietors of Long Wharf, and that by virtue of such conveyance respondents thereby acquired the right to use the east face of the dock in common with the other present owners of the lots delineated on said plat of Gravelly Point.

The respondents introduced in evidence a certified copy of a Bargain and Sale deed from Amado to respondents Deomatares and Fatulli, which was duly executed, acknowledged and recorded in the land evidence records of the city of Newport. Said deed purported to convey title to the easterly portion of lot No. 4 on the original Gravelly Point plat.

It appears from the evidence that for many years the respondents have been mooring their boats to the east face within approximately a 40-foot area at the northern end of the 215-foot section; that they and others have done so without charge and with the approval of the city; that for many years it had been the custom of fishermen to moor their boats to the east face, except that when the barges were there the fishermen would tie up to the barges; and that the city never did anything to terminate said approval.

After the hearing the trial justice filed a rescript in which he carefully reviewed the evidence and the opposing contentions. He pointed out that the Amado deed was dated approximately three weeks after the service of the subpoenas upon respondents, that he was not at all satisfied it...