Provincetown Chamber of Commerce, Inc. v. Grace

• Decision Date: 08 June 1982
• Citation: 14 Mass.App.Ct. 903,436 N.E.2d 177
• Parties: PROVINCETOWN CHAMBER OF COMMERCE, INC. v. John T. GRACE et al. (and a companion case).
• Court: Appeals Court of Massachusetts

Page 177

436 N.E.2d 177

14 Mass.App.Ct. 903

PROVINCETOWN CHAMBER OF COMMERCE, INC. v. John T. GRACE et al. (and a companion case).

Appeals Court of Massachusetts, Barnstable.

Argued April 15, 1982.

Decided June 8, 1982.

Edward E. Veara, South Dennis (Paul V. Benatti, South Dennis, with him), for defendants.

James M. Falla, West Harwich, for plaintiff.

Before ARMSTRONG, GREANEY and SMITH, JJ.

RESCRIPT.

By their cross-complaints for declaratory and other relief, the Provincetown Chamber of Commerce, Inc. (Chamber), and John T. Grace, Robert F. Silva, and Joseph P. Cannistraro (Grace group) sought to determine their respective rights to the possession and use of the surface of a rectangular parcel of land which measures approximately twenty by thirty feet and is adjacent to their respective properties at or near Commercial Street in Provincetown.

The Chamber's complaint alleged that it and its predecessor, the Provincetown Board of Trade (Board), have title and the right to occupy the parcel; that on May 14, 1971, the Chamber granted the Grace group an easement in the parcel; that the easement was given for the purpose of enabling the Grace group to install and maintain a subsurface sewage system for the benefit of both parties; that the easement was to last as long as both parties owned their respective properties; that the parties also entered into a written lease which gave the Grace group the right to use the surface of the parcel during the summer season as an outdoor eating area for customers of the refreshment stand it operated; that the lease has expired; and that since 1977 or 1978 the Grace group has been trespassing on the parcel by continuing to use its surface during the summer over the Chamber's objections.

In its answer, the Grace group denied that its right to use the surface of the parcel derived from a written lease, and denied the existence of such a lease. In its own original complaint, the Grace group alleged that the parties negotiated an oral agreement; that the sewage easement was granted in confirmation of one part of that agreement; that the Chamber further agreed that the Grace group, as consideration for constructing and maintaining the sewage system, would have the right to "improve, use and occupy" the surface of the parcel as an eating area "each and every summer season for as long as ... (it) wished ... without charge;" that the Grace group performed its part of the agreement in reliance on the Chamber's representations regarding that right; and that the Chamber made those representations for "the purpose and intent of inducing ... (it) to construct the ... septic ... (system) and clean up and improve the ... area."

The actions were consolidated for purposes of trial and disposition, and referred to a master under a nonjury order of reference. See Superior Court Rule 49(7), as amended (1976). The master's initial report was recommitted on the Chamber's objections. His supplemental report was adopted over the objections of the Grace group. In each case judgment entered which (a) declared that the Grace group had no right to use the parcel "for any purpose other than as the site of a subsurface sewage disposal system"; (b) permanently enjoined them from making any other use of the parcel; and (c) determined that neither party was entitled to damages or costs. The Grace group has appealed.

1. In his initial report, the master focused on the fact that record title to the parcel rests not in the Chamber, but in the Provincetown Board of Trade. Based on that fact, he decided that the Chamber "has not established its right to either use the premises in question or grant any easements for its use," and concluded that the Chamber had "no right to interfere with the use" of the parcel by the Grace group. In its complaint, however, the Chamber claimed its possessory rights through the Board as its predecessor. Moreover, as the judge noted in the memorandum accompanying his order for recommittal, paragraph nine of the Grace group's own complaint alleged that the Chamber "has at all times material to this action occupied, maintained, managed, and controlled ... (this parcel) belonging to the ... Board." That allegation of fact bound the Grace group as an admission, G.L. c. 231, § 87, as appearing in St. 1973, c. 1114, § 190; Davenport v. Squibb, 320 Mass. 629, 634, 70 N.E.2d 793 (1947); Valentine Lumber & Supply Co. v. Thibeault, 333 Mass. 361, 363, 130 N.E.2d 873 (1955); see McCray v. Weinberg, 4 Mass.App. 13, 16, 340 N.E.2d 518 (1976), and cases cited, and its effect is not mitigated by anything else in the complaint. In view of that admission, the grant of the easement, and the Grace group's express reliance on an agreement predicated on the easement as the source of its rights, the evidence was sufficient to establish that the Chamber had a possessory interest which allowed it to exclude anyone who could not show better title. See Slater v. Rawson, 6 Met. 439, 446 (1843); Morrison v. Holder, 214 Mass. 366, 370, 101 N.E. 1067 (1913); Opinion of the Justices, 365 Mass. 681, 689, 313 N.E.2d 561 (1974). As a result, the judge was clearly correct in his determinations that the master was not free to find that the Chamber had no right to use the land or grant an easement, see DeNunzio v. City Manager of Cambridge, 341 Mass. 420, 421, 169 N.E.2d 877 (1960), and cases cited, and that there were defects apparent on the face of the report which required its recommittal. See Bills v. Nunno, 4 Mass.App. 279, 282-283, 346 N.E.2d 718 (1976). See also Larson v. Brockton Agricultural Soc., 344 Mass. 463, 465, 183 N.E.2d 292 (1962); LaRose v. Campbell, 5 Mass.App. 840, 363 N.E.2d 1330 (1977).

2. The judge denied motions by the Grace group to amend paragraph nine of its complaint, and to strike portions of the Chamber's complaint. There was no error. The judge could properly have considered the facts that the case had already been tried once to the master; that the order for recommittal had already been entered, along with the memorandum spelling out the errors in the master's analysis; that the motion to amend sought to discard the Grace group's original theory and introduce a new and contradictory basis for relief; and that even the most restrictive reading of the easement, which was part of the agreement upon which the Grace group originally relied, indicated possessory rights in the Chamber. Read in the context of the Grace group's original complaint, paragraph nine leaves little room for the present contentions that the paragraph...