Robert v. Perron
| Decision Date | 02 January 1930 |
| Citation | 269 Mass. 537 |
| Parties | NAPOLEON F. ROBERT v. MARY PERRON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 19, 1929.
Present: RUGG, C.
Prescription. Easement.
Equity Pleading and Practice, Master: findings, exceptions to report.
A judge hearing a suit in equity upon the pleadings and a report by a master which contains findings in the nature of inferences from other facts found by him is not bound to draw the same inferences as those drawn by the master but may draw such inferences as he is satisfied the facts sustain.
A master, who heard a suit in equity in which a determinative issue was, whether an open and continuous encroachment by a grantee upon an easement reserved in a deed of land by a corporation also was adverse, found in substance that the grantee had built the structure, which was the encroachment, because some one from the corporation, of whose authority there was no evidence had told him that he could do so; and he found that the defendant, successor in title to such grantee, had not sustained the burden of proving that such encroachment was adverse.
A judge found that such use was adverse. Held, that the judge was warranted in drawing the inference, in effect that the encroachment by the grantee was permissive only in the sense that the corporation did not interfere when it began and that the grantee understood that it would not interfere at any time and that it was adverse because the grantee acted with the intent to assert a right in himself inconsistent with a right of the corporation to interfere with him, not pursuant to a permission which implied a continued recognition on his part of a right in the corporation.
BILL IN EQUITY filed in the Superior Court on October 9, 1926, to enjoin the defendant from encroaching on an alley in violation of alleged rights of the plaintiff to the use thereof.
The suit was referred to a master. Material facts found by the master are stated in the opinion. Both parties filed objections to the report. The suit then was heard by Greenhalge, J., by whose order there were entered an interlocutory decree confirming the report and a final decree dismissing the bill. Neither decree made any mention of the objections of the parties to the report.
The plaintiff appealed from both decrees. The case was submitted on briefs.
N.P. Avery, A.S. Gaylord & R.L. Davenport, for the plaintiff. J.F. Kelly, for the defendant.
The bill in this cause was brought at the same time as that in Robert v. O'Connell, ante, decided this day. The cases were heard together by the master and by the Superior Court. The facts found by the master with reference to the origin and use of the common passageway in general use between Lyman Street and Ely Street in Holyoke and to prescriptive rights therein are the same, and need not be again set out. The land of the defendant adjoins that of Mrs. O'Connell to the south; but the passageway in actual use lies relatively further to the west thereon, and the encroachment upon the plaintiff resulting from occupation by the defendant up to the easterly line of that passageway is greater.
The Holyoke Water Power Company, which once owned all the land in the block bounded by Lyman Street, Summer Street, Ely Street and North Bridge Street except a tract fronting upon Ely Street conveyed a parcel facing Summer Street to one Long in May of 1886, and another parcel to the plaintiff in 1924. It bounded both parcels (the former on the west and the latter on the east) by "the center line of an alley or common passageway, which passageway is sixteen (16) feet in width leading out of and from said Lyman Street." The deed to Long contained a clause: "Eight (8) feet in width of said alley lies upon and is a part of the whole westerly end of the lot herein conveyed and is to be forever kept open as a passage way in common free from all obstructions and nuisance made or permitted by the Grantee his heirs or assigns, and the Grantor reserves to itself and its successors and assigns and to the City of Holyoke the right at all times to enter upon said alley to lay water and gas pipes, construct sewers and repair the same and to do whatsoever is necessary to be done for the public interest and convenience." The deed to the plaintiff contained the same clause, with the exceptions that the words "and to the City of Holyoke" were omitted and in their place was printed "the right of passage therein on foot and with vehicles, and also"; and that the words "down and use" were inserted between "lay" and "water"; and the words "and use" were inserted between "construct" and "sewers." The defendant is a daughter of Long who has lived upon the locus from the time he took possession. She inherited one undivided third at his death in 1887. She acquired a second from a purchaser from the assignees in the insolvency of a brother in 1895, and the third from the remaining heir at law of her father in 1923. None of the conveyances to her contain any reference to the alleyway, either as a monument or boundary. All omit the clause of...
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