Ryan v. Stavros

• Decision Date: 10 December 1964
• Parties: Russell E. RYAN et al. v. Zaharoula STAVROS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 85

203 N.E.2d 85

348 Mass. 251

Russell E. RYAN et al. v. Zaharoula STAVROS.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Oct. 6, 1964.

Decided Dec. 10, 1964.

Walter J. Griffin, Worcester, for plaintiffs.

Sumner W. Elton, Worcester, for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

SPIEGEL, Justice.

This is a bill in equity to establish title to a strip of land by adverse possession or to acquire 'a right [therein] by prescription to occupy, and park cars.' The plaintiffs also seek to require the defendant ¹ to remove an asphalt berm and to 'restore the plaintiffs' land to its former condition.' The parties filed objections to the master's report which, under Rule 90 of the Superior Court (1954) are treated as exceptions. The plaintiffs filed a motion to recommit. The court below took no action on the exceptions or on the motion to recommit, but entered an interlocutory decree allowing the defendant's motion for a final decree dismissing the bill. A final decree dismissing the bill was then entered. The plaintiffs appeal from the interlocutory and final decrees.

The entry of a final decree without first ruling on the plaintiffs' exceptions and their motion to recommit and without prior confirmation of the master's report was highly irregular. Courtney v. Charles Dowd Box Co. Inc., 341 Mass. 337, 340, 169 N.E.2d 885. It is a practice which the court below should make every effort to avoid. However, the entry of the final decree impliedly overruled the plaintiffs' exceptions, impliedly denied their motion to recommit, and impliedly confirmed the report. See Cali v. Caliri, 254 Mass. 488, 490, 150 N.E. 323; Courtney v. Charles Dowd Box Co. Inc., supra, 341 Mass. 340, 169 N.E.2d 885. Whether the master's ultimate findings are correct was open to the trial judge and to this court on appeal. Dodge v. Anna Jaques Hosp., 301 Mass. 431, 435, 17 N.E.2d 308; Madigan v. McCann, 346 Mass. 62, 64, 190 N.E.2d 215.

A summary of the material facts found by the master follows. The area in dispute is a strip of land approximately fifteen feet wide and extending about 100 feet northwesterly between property of the plaintiffs on its northeasterly side and that of the defendant on its southwesterly side. The attached sketch-plan indicates the location of the strip.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

According to the plaintiffs' deed from one William J. Maher in 1949, 'the southeasterly corner of the plaintiffs' premises is described as being distant 151.19 feet southwesterly of the end of a curve connecting the northwesterly line of Park Avenue and the southwesterly line of Mill Street.' This parcel, roughly 100 feet square, is substantially the same piece of land deeded in 1937 from one Cassie MacRae to one Signe H. Lussier, and in 1939 from her to Wilfred and Aurore Lussier.

According to the defendant's deed from MacRae in 1950, the northeasterly boundary of the defendant's land is described as follows: 'Beginning at a point which is 280 feet, more or less, from the southwesterly corner of Park Avenue and Mill Street, thence turning and running North 41~53' West a distance of 200 feet to land of Maher and Hood.' In 1941, MacRae conveyed to H. P. Hood & Sons, Inc. (Hood) a parcel described in the Hood deed as 479.55 feet from the corner of Mill Street and Park Avenue. A rear portion of the Hood land is 200 feet from Park Avenue and extends in a northerly direction for 225 feet along the northwesterly line of the defendant's land. 'The angles of the * * * [defendant's] property at Park Avenue and at the Hood property are right angles.' In November, 1950, MacRae conveyed another parcel (now also owned by the plaintiffs) to one Miriam K. Maher which extends from the southerly line of Mill Street until it abuts the northeasterly boundary of the Hood land 'and a portion of what ultimately became the northeasterly boundary' of the defendant's land. This parcel is indicated in the sketch-plan as 'Land of Maher.'

In 1940 MacRae leased the area now comprising the defendant's land to one Joseph Jasper. That area was rectangular in shape, its Park Avenue and rear lines each running 225 feet, and its other two sides running 200 feet. At that time there was a curve where Mill Street and Park Avenue joined. The original draft of the lease recited, in relevant part, the following: 'Beginning at a point which is 280 feet more or less distant from the northwest corner of Park Avenue and Mill Street, so-called, on Park Avenue.' The attorney who drafted the lease, in arriving at the figure of '280 feet, more of less,' had extended the side lines of Mill Street and Park Avenue to a hypothetical intersection and had measured with a ruler the approximate distance from the intersecting point to the proposed starting point of the land leased to Jasper. In order to fix the boundary of the area leased at the Lussier land (now the plaintiffs' land), a title examiner prior to recording the lease, changed its wording to read: 'Beginning at the most southerly corner of land conveyed to one Lussier at a point which is 260 feet more or less distant from the southwest corner of Park Avenue and Mill Street, so-called, on Park Avenue.' This change was made with the consent of the lessor and the lessee. In December, 1950, the defendant was the sole owner of all rights under this lease. MacRae then executed a new lease to the defendant with an option in the lessee to buy the land. Soon afterward, a deed thereto was executed to the defendant and placed in escrow with the attorney. At the time of the preparation of the lease and deed of 1950, the attorney had no knowledge of the change in the description which had been made in the lease of 1940.

In 1934, on the land now owned by the plaintiffs, there was a diner set back about fifty feet from Park Avenue. Beginning 'in the late 1930s,' on the strip of land now in dispute, a sign faced the diner and was also set back fifty feet from Park Avenue. From 1934 to 1937, the diner and surrounding land were owned by MacRae. One Ralph Lussier operated the diner '[f]rom the end of 1934 until 1939.' He initially operated it as a subtenant of one Barriere, who held a lease from MacRae. In October of 1937, the land 'occupied by the diner' was bought by Signe Lussier, Ralph's wife. A semi-circular curbing was installed immediately to the south of the southerly driveway of the diner in 1937 so that an 'imaginary line' extended from 'the easterly leg of the sign to the center of the curbstone.' During the period of occupancy by Ralph, the disputed strip and the area around the diner were not paved. In the winter he arranged for plowing as far as the sign in the rear. He did not indicate parking spaces, nor direct customers where to park. Cars were parked on all sides of the diner, 'but there was no evidence as to this period that specifically placed cars in the disputed area.'

In 1939 Wilfred and Aurore Lussier bought and began to operate the diner. In 1941 they paved with blacktop the area around the diner, within a foot or two of the billboard sign and along part of the disputed strip down to the curbstone abutting Park Avenue. The Lussiers sold the property in December, 1945, and in January, 1946, the plaintiffs assumed operation of the diner as lessees until 1949, when they bought the land from Maher.

'Wilfred and Aurore Lussier from 1939 to December, 1945, and the plaintiffs since the latter date * * * used the driveway entrance immediately southerly of the diner for ingress and egress between Park Avenue and their property, and * * * they * * * made such use under a claim of right for more than twenty years. [They and] * * * their customers and business invitees have passed and repassed for that period of time over a triangular piece of the disputed premises.'

When the defendant purchased her parcel, she 'did not clearly realize' the location of its northerly boundary '[b]ecause of the statement of distance made in the lease and deed ('280 feet, more or less').' In order to prevent trucks from cutting through her land from the plaintiffs' diner to Park Avenue, she erected five or six wooden posts with a chain joining them along the southerly line of the area in dispute about six feet south of the 'imaginary line' from the sign to the curb. In 1953, she spoke to one of the plaintiffs about a survey which indicated that her land extended to a point north of the sign. But she did not follow an entirely consistent course in claiming the land. The defendant operated a restaurant on this land. Every two years, between 1950 and 1960, the defendant arranged for painting of the semicircular curbing. During this period persons hired by her removed 'paper accumulations and other debris in the disputed area.' On the Thanksgiving eves of 1953 and 1954 she set up 'horses' across the driveways entering her land from Park Avenue, and, in the disputed area, across one half of the driveway which entered the plaintiffs' premises. On each 'horse' was a sign reading 'closed.' The 'horses' and signs remained until about 11 P.M. on Thanksgiving Day in both years at which time they were removed by the defendant. The plaintiffs' diner was not open for business during the hours the 'horses' and signs appeared. In 1960 the defendant paved the entire disputed area with asphalt and installed a berm within a few feet of the southerly boundary of the plaintiffs' land.

1. The plaintiffs contend that as a matter of law the northerly boundary of the defendant's property begins 280 feet from the southwesterly corner of Park Avenue and Mill Street, as set forth in her deed. They argue that the defendant's northerly boundary is the southerly boundary of the strip, and that the defendant has no standing to contest title to it. The master, however, found that the strip is entirely on land to which the defendant holds record title. We...