Pollock v. Morrison

• Decision Date: 17 May 1900
• Citation: 57 N.E. 326,176 Mass. 83
• Parties: POLLOCK et al. v. MORRISON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 83

57 N.E. 326

POLLOCK et al. v. MORRISON.

Supreme Judicial Court of Massachusetts, Middlesex.

May 17, 1900

COUNSEL

Augustine J. Daly, for petitioners.

E. R Thayer, for respondent.

OPINION

HAMMOND J.

It appeared at the trial that in 1894 the respondent bought a lot of land on the southwesterly corner of Pearl and Walnut streets, and thereafter proceeded to build thereon a block of buildings; that, in the construction of the block, he found the lot too small for it, as planned; that during its construction he purchased a lot adjoining on the west (being the land described in this petition); and that immediately after the purchase of this second lot he put up a fence some feet westerly of the old division line between the two lots,--said fence running from the southerly line of the second lot, in a direction nearly parallel with the old division line, to a point distant about 15 feet southerly from the southerly line of Pearl street, and then turning at right angles and running easterly about 6 feet, crossing the said division line to the rear of the block, all as shown on the plan annexed to the bill of exceptions. It further appeared that he concreted the entire space between the block and the fence, and that portions of the block extended upon a part of the second lot easterly of the fence. The building upon which the petitioners worked was wholly upon that part of the second lot which was west of the fence and there was evidence tending to show that it was not begun until December, 1897, or later,--long after the fence was built. The respondent contended, and offered to show, that his intention was 'to make a permanent division by said fence, and to divide the entire tract owned by him into two lots by said fence.' As bearing upon this, he was asked in direct examination what his intention was, with reference to the division of land, in putting up the fence and doing the concreting. The court excluded the question.

Inasmuch as the lien could be maintained upon no other lot of land then that upon which the building was situated (Landers v. Dexter, 106 Mass. 531), and must be maintained, if at all, upon the whole of such lot, and not a part thereof ( Whalen v. Collins, 164 Mass. 146, 41 N.E. 124), the boundaries of the lot were, of course, material. In this case it was not claimed by the petitioners that the entire tract of land upon which the two buildings stood was one lot. If that was so, then the petition must have been dismissed. Whalen v. Collins, ubi supra. It was a part of their case that there was some division of the land, and the question at the trial was whether that division was fixed by the deeds by which the property was conveyed to the respondent...