Pease v. Parsons

• Decision Date: 26 November 1930
• Citation: Pease v. Parsons, 273 Mass. 111, 173 N.E. 406 (Mass. 1930)
• Parties: PEASE v. PARSONS et al.
• Court: Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 111

173 N.E. 406

PEASE

v.PARSONS et al.

Supreme Judicial Court of Massachusetts, Franklin.

Nov. 26, 1930.

Appeal from Superior Court, Franklin County; Lummus, Judge.

Suit by Sarah A. Pease against Charles Parsons, C. Lyman Parsons, and others.A decree affirming the master's report was entered, but not appealed from, and, from a final decree for plaintiff, defendant last named appeals.

Affirmed.W. A. Davenport and W. L. Davenport, both of Greenfield, for appellant.

C. H. Wright, of Pittsfield, and E. D. Getman, of North Adams, for appellee.

CARROLL, J.

When this suit in equity was before us, Pease v. Parsons, 259 Mass. 86, 156 N. E. 4, the demurrer of the defendants was overruled.The plaintiff has amended her bill and the case was sent to a master.

C. Lyman Parsons, hereafter called the defendant, conveyed to trustees a tract of land in Conway to be used as a public playground.A baseball field was laid out thereon, and the master found that the diamond as located in 1920 was so near the plaintiff's land that a great many balls were driven onto her premises; that the defendant approved this location of the baseball field which was frequently used for baseball games by children and adults, although his approval of the location was before he became trustee; that the defendant participated, after he became trustee, ‘in a number of ballgames played on the diamond, has umpired a few, and frequently has attended them as a spectator’; that it was always apparent to him that the diamond was so located ‘that it was reasonably to be anticipated that foul balls would be batted upon the plaintiff's property in the ordinary course of the games, and was a necessary consequence of the layout of the diamond.’It was also found that the defendant saw balls batted onto the plaintiff's land was witnessed damage done thereby to her property: that the plaintiff on several occasions complained to the defendant and has requested ‘that the situation be remedied’; that the defendant at all times has permitted the use of the playground for ball games and has never taken any steps to stop them; that baseballs were driven against the plaintiff's house and barn, damaging them, and quite frequently players would come upon her land to recover the balls batted into her garden; that the plaintiff has been subjected to inconvenience and annoyance and has been deprived of the unrestricted use of her yard and garden and the comfortable enjoyment of her home.It appeared that shortly before the suit was brought fences and wire barriers were erected.These have prevented many balls from going upon the plaintiff's land but ‘It seems doubtful * * * if the trouble can be entirely remedied’ if games are to be played on the diamond as at present located.The inference to be drawn from the findings is that the management and control of the ball field in its location where damage to the plaintiff's land would follow from its use were in the hands of the defendant.

After the death of Charles Parsons, one of the original trustees, the town of Conway, on February 7, 1921, took action purporting to elect the defendant as his successor.The vote of the town was in these words: ‘It was voted by the town that C. Lyman Parsons be a trustee of the public playgrounds.’It was not stated in the warrant for the meeting that this subject was to be acted on.At the hearing before the master the defendant testified that he understood he was a trustee.The master found that he accepted the office and acted as if he were a trustee and ‘assumed the duties and liabilities of the office, if as matter of law he could do so.’

There was no appeal from the decree affirming the master's report.A final decree was entered enjoining all the defendants from permitting baseball games to be played on the playground in such a place or manner ‘that a ball will be likely to be batted or thrown on the adjoining premises of the plaintiff.’The decree also ordered the defendantC. Lyman Parsons to pay to the plaintiff the damages assessed.He appealed.

A certain right of way was involved in the proceeding, but the decree is silent on this matter and no argument is made in reference to it.It is not argued that the part of the decree ordering Parsons, Affhauser and Patterson ‘to take all reasonable means to prevent the playing of the game of baseball on such playground in such a place or in such a manner that a ball will be likely to be batted or thrown on said premises of the plaintiff’ is wrong.The defendant's complaint is that the decree is incorrect in awarding damages against him and in restraining him from permitting ball games to be played on the location in question.

Affhauser, Patterson and one Charles Parsons were the trustees named in the deed, dated June 1, 1916, in which the defendant was the grantor.The master found that when the deed was given all the trustees lived in Conway; that ‘since the day following the giving of the deed the trustees' have never held a meeting or taken any official action regarding the diamond; that Affhauser moved from Conway ten years ago, and Patterson, since 1919, has ceased to live in Conway; that neither Affhauser nor Patterson had anything to do with laying out the present diamond, and it did not appear that either of them had seen a game played thereon or knew that damage was done or likely to be done to the plaintiff.The plaintiff contends that Affhauser and Patterson should be called upon to respond in...