Scioscia v. Iovieno

• Decision Date: 31 October 1945
• Citation: 63 N.E.2d 898,318 Mass. 601
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: LOUISA SCIOSCIA & another v. GIUSEPPE IOVIENO & another.

318 Mass. 601

63 N.E.2d 898

LOUISA SCIOSCIA & another v. GIUSEPPE IOVIENO & another.

Supreme Judicial Court of Massachusetts, Worcester.

October 31, 1945

September 25, 1945.

Present: FIELD, C.

J., QUA, RONAN WILKINS, & SPALDING, JJ.

Real Property License, Trespass. License. Trespass. Equity Jurisdiction Laches, Trespass. Laches.

Facts appearing in a suit between owners of adjacent parcels of land, that a former owner of both parcels, after the defendant had received title from him to one of them, had given the defendant permission to maintain clothes reels extending over the other parcel, which the former owner three years later had conveyed to the plaintiff; that the plaintiff for fourteen years after he acquired title had orally consented to and acquiesced in such maintenance; and that the plaintiff had not been damaged by such maintenance, did not show that the plaintiff was precluded from withdrawing the consent, nor bar him from relief by injunction of such maintenance as a continuing trespass; the plaintiff was not guilty of laches.

BILL IN EQUITY, filed in the Superior Court with a writ of summons and attachment dated June 18, 1942.

The case was heard by Leary, J. In this court the case was submitted on briefs.

H. H. Hartwell & J.

F. Driscoll, for the plaintiffs.

Nicholas Fusaro & Nunziato Fusaro, for the defendants.

RONAN, J. These are appeals by both parties from an interlocutory decree confirming a master's report as modified by sustaining one of the plaintiffs' exceptions to the report, and from a final decree enjoining the defendants from maintaining and permitting clothes reels to extend over land of the plaintiffs.

The facts appear in the report of the master. One Marshall and his wife conveyed a parcel of land to the defendants in 1924 and an adjoining parcel to the plaintiffs in 1927. A three-family house was located upon the premises of the defendants at the time of the purchase, and since that time the defendants have maintained a clothes reel from the rear of the second-story piazza and also another from the third-story piazza, except for a time in 1929 when the old reels were removed and replaced by two new ones. When these reels are in use they extend over the plaintiffs' property for a distance of two feet three inches, but when not in use they are not located over the plaintiffs' land. Just prior to the purchase by the defendants they discovered that the reels when swung out from the piazzas extended over the adjoining land then owned by the Marshalls. They were told by Marshall that, as he and his wife owned the adjoining property "they would not trouble them" about the reels. The plaintiffs from the time they purchased their property in 1927 up to 1941 consented to and acquiesced in the maintenance of the clothes reels by the defendants, but when in 1941 the friendly relations between the parties ceased, the plaintiffs objected to the further maintenance of the reels in their present positions. The master found that the defendants acted in good faith in extending the reels over the plaintiffs' land; that they honestly thought they had a right to do so from what Marshall had told them; that the plaintiffs have not been damaged by the action of the defendants; that there was no excuse for the plaintiffs' delay in enforcing their rights; and that the plaintiffs were guilty of laches.

The permission granted the defendants by Marshall to extend the reels over the Marshall land did not give the defendants any easement or other interest in that land. The permission was an oral license revocable at will, which was terminated by the subsequent conveyance of the land by the Marshalls to the plaintiffs. Cook v. Stearns, 11 Mass. 533 , 538. Nelson v. American Telephone & Telegraph Co. 270 Mass. 471 , 479. Baseball Publishing Co. v. Bruton, 302 Mass. 54 , 56. Supraner v. Citizens Savings Bank, 303 Mass. 460, 466.

Upon the facts found by the master, the maintenance of the reels over the plaintiffs' land for a period of fourteen years did not give the defendants any right by prescription or otherwise in the plaintiffs' property, or prevent the plaintiffs from withdrawing their consent to the future extensions of the reels over their property, or bar them from bringing proceedings to restrain the defendants from continuing from time to time to swing out the reels over ...