Rappel v. Italian Catholic Cemetery Ass'n

• Decision Date: 23 May 1927
• Parties: RAPPEL v. ITALIAN CATHOLIC CEMETERY ASS'N.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 550

156 N.E. 709

RAPPEL

v.ITALIAN CATHOLIC CEMETERY ASS'N.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1927.

Appeal from Superior Court, Suffolk County; Lourie, Judge.

Bill in equity by George F. Rappel against the Italian Catholic Cemetery Association. Decree for defendant, and complainant appeals. Affirmed.C. H. Cronin, of Boston, for appellant.

J. F. Gadsby, of Boston, for appellee.

PIERCE, J.

This is a bill in equity to enjoin the defendant from maintaining a fence across a private street or way, owned in part by the plaintiff and defendant, where it enters Walk Hill street (a public street), thereby preventing the use of the way as a means of access to and from the rear of the plaintiff's premises which adjoin the way and Walk Hill street. The bill further seeks to enjoin the further removal of soil from the private street or way, and for a mandatory injunction ordering the defendant to restore the surface of the street or way to the condition it was in before the defendant removed the soil therefrom. The defendant filed a plea in substance declaring that the alleged right of the plaintiff to equitable relief upon the same subject, in the same manner, and to the same effect, was adjudicated against the plaintiff in a suit against the defendant, in the Supreme Judicial Court for the county of Suffolk, in a final decree dismissing the bill, from which no appeal was taken. After a hearing, upon evidence which is reported to this court, a judge of the superior court sustained the plea in bar and entered a final decree dismissing the bill of complaint with costs. The case is before this court on appeal from the final decree.

The bill of complaint which was dismissed in 1921, in a final decree after an interlocutory decree sustaining a demurrer thereto, was brought by the plaintiff in the present suit, with others, against the present defendant. In substance it stated, as the present bill does, that the plaintiff and the defendant owned all the land with the exception of lots 1 and 2 shown on a plan of lots duly recorded in Suffolk registry of deeds, Book 1950, page 228; that the plaintiff owned lot 5 which is bounded northeasterly by Walk Hill street and southeasterly by a street shown on said plan; that the defendant had applied for and received a permit or license to use for cemetery or burial purposes a portion of the land owned by it, and shown on said plan, ‘viz. lots 6 to 24, inclusive, together with streets as shown on said plan’; that the defendant is preparing said tract of land for cemetery or burial purposes under the authority of its license or permit; ‘that it is the purpose and intention of said defendant corporation to close said streets as shown on said plan hereto annexed * * * and to use all of said land * * * for cemetery or burial purposes.’ More particularly the bill alleged that the permit or license ‘includes within the bounds therein described and shown by copy of plan * * * annexed * * * the pertion of street * * * which abuts on lot 5 * * * which was purchased as described in paragraph 1 of this bill of complaint by [the] plaintiff’; and that the plaintiff ‘George F. Rappell has an established right of way and easement over said street or way and that said permit or license so granted is void as it applies to said portion of said way or street.’ The demurrer admits ‘that it is the purpose and intention of said defendant corporation to close said streets.’

To close the street or way shown on the plan which afforded access to the rear of the premises of the plaintiff...