Prenguber v. Agostini

• Decision Date: 09 January 1935
• Citation: 193 N.E. 743,289 Mass. 222
• Parties: PRENGUBER et al. v. AGOSTINI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

289 Mass. 222

193 N.E. 743

PRENGUBER et al. v. AGOSTINI.

Supreme Judicial Court of Massachusetts, Berkshire.

January 9, 1935

Exceptions from Superior Court, Berkshire County; W. A Burns, Judge.

Suit by Joseph Prenguber and others against Victor A. Agostini. To review rulings of the Superior Court upon a motion to correct a final decree in plaintiffs' favor, defendant brings exceptions.

Exceptions sustained.

M. B Warner, of Pittsfield, for plaintiffs.

W. A. O'Hearn, of North Adams, for defendant.

FIELD Justice.

This suit in equity involves the existence and location of a right of way from the plaintiff's land west of Furnace street in North Adams over land of the defendant also west of Furnace street to that street.

The case was referred to a master who filed a report, which was confirmed by an interlocutory decree, in which he found facts showing that the plaintiffs had a right of way by prescription over the defendant's land and fixing its location. A final decree was entered establishing in favor of the plaintiffs a right of way as described in said decree. No appeal was taken from either of these decrees.

Thereafter the plaintiffs filed a motion entitled ‘ Motion to Correct Clerical Errors and Mistakes in Computations in the Final Decree’ on which the following ruling was made by the judge who had heard the case on the master's report: ‘ The master having found the plaintiffs entitled to a right of way approximately 10 ft. wide and it having been shown to the Court that the description thereof as incorporated in the final decree is erroneous in that it does not describe a right of way approximately 10 feet wide but describes a right of way not over 4 feet wide at its intersection with Furnace Street, so much of the plaintiffs' motion as in substance requests that the description set forth therein be substituted for the description heretofore incorporated in the final decree, is allowed.’ The defendant excepted to this ruling.

As stated in the recent case of Kingsley v. Fall River, 280 Mass. 395, page 398,182 N.E. 841, 842, with citation of earlier cases, ‘ it is an established principle that after the entry of a final decree in a suit in equity the case is finally disposed of subject to such rights of appeal as the law affords, and the court has no further power to deal with the case except upon a bill of review. * * * There are certain exceptions to this rule, as, for example, where clerical errors, mistakes in computation or irregularities in making up the record have occurred. * * *’ (Other exceptions not here material also are referred to.) See, also, Beacon Oil Co. v. Maniatis, 284 Mass. 574, 577, 578, 188 N.E. 386, and cases cited. The question for our determination is whether the present case falls within the exception stated.

The master's report, the final decree and the final decree as corrected all describe a right of way over a strip of land running in a southerly direction from the plaintiffs' premises to Furnace street. There are no apparent differences in the location of the right of way at the plaintiffs' premises or of the point of intersection of the easterly line of the right of way and the westerly line of Furnace street. The present dispute is in regard to...