Peters v. Archambault

Decision Date08 February 1972
Citation361 Mass. 91,278 N.E.2d 729
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesPeter S. PETERS et al. v. Anthony ARCHAMBAULT et al.

Brian E. Concannon, Marshfield, for defendants.

Brian T. Callahan, Boston, for plaintiffs.

Before TAURO, C.J., and CUTTER, REARDON, QUIRICO and HENNESSEY, JJ.

CUTTER, Justice.

The plaintiffs by this bill seek to compel the defendants (the Archambaults) to remove a portion of the Archambault house which encroaches on the plaintiffs' land in Marshfield. The plaintiffs and the Archambaults own adjoining ocean-front lots. Both lots are registered (G.L. c. 185). Neither certificate of title shows the Archambault lot to have any rights in the plaintiffs' lot.

The Archambaults' predecessor in title obtained a building permit in 1946 and built a house partly on their own lot and partly on the plaintiffs' lot, of which the total area is about 4,900 square feet. Each lot had a frontage of only fifty feet on the adjacent way. The encroachment contains 465 square feet, and the building extends fifteen feet, three inches, onto the plaintiffs' lot, to a depth of thirty-one feet, four inches. The trial judge found that it will be expensive to remove the encroaching portion of the Archambaults' building. He ruled (correctly, so far as appears from his subsidiary findings and from the small portion of the evidence which has been reported) that there had been established no estoppel of, or laches on the part of, the plaintiffs in seeking to have the encroachment removed. It appears from the evidence that the Archambaults bought their lot from one vendor and the plaintiffs on June 14, 1966, bought their lot from another vendor. The judge found no evidence of any permission by the owners of the plaintiffs' lot for the encroachment. The encroachment was discovered on July 14, 1966, when the plaintiffs had a survey of their land made. 1

A final decree ordered the removal of the encroachment. The Archambaults appealed. The judge adopted as his report of material facts the findings already summarized.

1. In Massachusetts a landowner is ordinarily entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land, even though the encroachment was unintentional or negligent and the cost of removal is substantial in comparison to any injury suffered by the owner of the lot upon which the encroachment has taken place. Geragosian v. Union Realty Co., 289 Mass. 104, 108--110, 193 N.E. 726. Ferrone v. Rossi, 311 Mass. 591, 594--597, 42 N.E.2d 564. Blood v. Cohen, 330 Mass. 385, 388--389, 113 N.E.2d 448. Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180, 187--189, 138 N.E.2d 777. Ottavia v. Savarese, 338 Mass. 330, 336--337, 155 N.E.2d 432. Brink v. Summers, 352 Mass. 786, 227 N.E.2d 476. In rare cases, referred to in our decisions as 'exceptional' (see the Ottavia case, supra, 338 Mass. at 336, 155 N.E.2d at 436), courts of equity have refused to grant a mandatory injunction and have left the plaintiff to his remedy of damages, 'where the unlawful encroachment has been made innocently, and the cost of removal by the defendant would be greatly disproportionate to the injury to the plaintiff from its continuation, or where the substantial rights of the owner may be protected without recourse to an injunction, or where in injunction would be oppressive and inequitable . . .. Lynch v. Union Inst. for Sav., 159 Mass. 306, 34 N.E. 364. Gray v. Howell, 292 Mass. 400, 198 N.E. 516. Triulzi v. Costa, 296 Mass. 24, 28, 4 N.E.2d 617. But these are the exceptions. What is just and equitable in cases of this sort depends very much upon the particular facts and circumstances disclosed.' 2

2. We here are considering the remedies to be applied with respect to registered land. Such land is protected to a greater extent than other land from unrecorded and unregistered liens, prescriptive rights, encumbrances, and other burdens. See G.L. c. 185, §§ 1(e), 46 (as amended through St.1963, c. 242, § 2), 47, 53, 57, 58, 77, 112; Swaim, Crocker's Notes on Common Forms (7th ed.), §§ 985--990, 991, 995; Davis, Mass. Conveyancers' Handbook (2d ed.), §§ 125, 128--129; Partridge, Deeds, Mortgages and Easements, 233. See also St. George's Ebenezer Primitive Methodist Church of Methuen v. Primitive Methodist Church, 315 Mass. 202, 204--206, 52 N.E.2d 401; Goldstein v. Beal, 317 Mass. 750, 758--759, 59 N.E.2d 712; Park, Conveyancing, § 581 et seq. Adverse possession (c. 185, § 53) does not run against such land. To recognize the encumbrance created by the Archambaults' encroachment would tend to 'defeat the purpose of the land registration act.' See Goldstein v. Beal, supra, at 759, 59 N.E.2d at 717.

3. The present record discloses no circumstances which would justify denial of a mandatory injunction for removal of an encroachment taking away over nine per cent (465/4900) of the plaintiffs' lot. The exceptions (see fn. 1, supra, and related text) to the general Massachusetts rule, hitherto recognized as sufficient to justify denial of mandatory relief, have related to much less significant invasions of a plaintiff's land, or have involved circumstances not here present. The invasion of the plaintiffs' lot is substantial and not de minimis. 3 Photographs and maps in evidence, portraying the encroachment, show tha the intrusion of the Archambaults' building on the plaintiffs' small lot greatly increases the congestion of that lot. The plaintiffs were entitled to receive whatever was shown by the land registration certificate as belonging to their grantor, unencumbered by any unregistered prescriptive easement or encroachment.

4. The Massachusetts rule in cases like this is well established. There is no occasion for resort to cases from other jurisdictions.

Decree affirmed with costs of appeal.

TAURO, Chief Justice (dissenting).

The plaintiffs and defendants are owners of adjoining lots, with dwellings, both registered under G.L. c. 185. The defendants acquired title to their lot on June 18, 1954, and the plaintiffs acquired their title on June 14, 1966. The plaintiffs seek removal of a portion of the defendants' dwelling which encroaches on their land. This encroachment existed in full view from June, 1946, when the defendants' predecessor in title erected the dwelling, until July 14, 1966, when the plaintiffs had their property surveyed for the purpose of erecting a retaining wall. During this period, neither the plaintiffs' predecessor in title nor the plaintiffs raised any objection to the location of the defendants' dwelling. It is reasonable to infer that prior to taking title the plaintiffs viewed the property. Thus they had actual notice of the location of the defendants' dwelling and its relative position to their own dwelling.

The plaintiffs do not seek money damages but rather a decree for the removal of the encroachment on their land which, in effect, would result in the destruction of the defendants' dwelling. 1 The Superior Court made, and the majority today affirm, such a decree. I cannot agree with the opinion of the majority that, in the proper exercise of the court's discretion, '(t)he present record discloses no circumstances which would justify denial of a mandatory injunction' compelling the removal of the encroaching structure. 2 To the contrary, I believe that the record before us sets forth unusual circumstances which would justify this court in denying a mandatory injunction and leaving the plaintiffs to seek their remedy at law for damages. Moreover, the granting of injunctive relief in the circumstances of this case would be 'oppressive and inequitable.'

To conclude, as does the majority opinion, that this court must grant a mandatory injunction because the facts in the instant case do not precisely fit the factual pattern adjudged to be 'exceptional' in prior Massachusetts cases in illogical and untenable. Courts, especially courts of equity, should not be restricted to so fossilized a concept of what the law is or should be. The cause of justice deserves a better fate. The overwhelming weight of authority in other jurisdictions recognizes and applies the doctrine I urge be adopted here. (See footnotes 7 and 8, infra.)

1. This court has recognized the existence of exceptional cases even as we laid down the general rule governing the treatment of suits in equity for the removal of encroaching structures. See Geragosian v. Union Realty Co., 289 Mass. 104, 109--110, 193 N.E. 726; Ferrone v. Rossi, 311 Mass. 591, 593, 42 N.E.2d 564. See also Goldstein v. Beal, 317 Mass. 750, 758, 59 N.E.2d 712; Ottavia v. Savarese, 338 Mass. 330, 336, 155 N.E.2d 432. In Ferrone v. Rossi, supra, we said, '(t)he (general) rule does not apply in those exceptional cases where the substantial rights of the landowner may be properly safeguarded without recourse to an injunction which in such cases would operate oppressively and inequitably.' 311 Mass. p. 593, 42 N.E.2d p. 566.

While it is true that this court in the past has denoted various classes of exceptions, 3 I cannot agree with the view which the plaintiffs urge, and which the majority find persuasive, that these cases bar this court from considering the particular facts of each case independently of recognized categories of exceptions. I believe that equity and justice require different standards. Long ago in Starkie v. Richmond, 155 Mass. 188, 195--196, 29 N.E. 770; we stated the principle that should guide us in reviewing cases of this sort where a plaintiff seeks to invoke our equitable powers: 'Each case depends on its own circumstances. It is for the court, in the exercise of a sound discretion, to determine in such instances whether a mandatory injunction shall issue. It will not be issued when it appears that it will operate inequitably and oppressively, nor when it appears that there has been unreasonable delay by the party seeking it,...

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