Sturnick v. Watson
| Decision Date | 31 May 1957 |
| Citation | 336 Mass. 139,142 N.E.2d 896 |
| Parties | Frederick M. STURNICK v. Joseph F. WATSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Richard S. Miller, Brighton, and Lester B. Snyder, Medford, for plaintiff.
John L. Murphy, Boston (John L. Murphy, Jr., Boston, with him), for defendant.
Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and CUTTER, JJ.
The objective of this bill in equity is to enjoin the defendant from destroying a brick wall of a building owned by him which supports both his building and one owned by the plaintiff. The defendant's answer included a counterclaim in which he asked that the plaintiff be ordered to remove the timbers of his building from the defendant's wall.
The judge made findings of material facts which include the following. The plaintiff owns a parcel of land on Hanover Street, Boston, on which there is a building numbered 39-41. Adjoining the plaintiff's premises is a lot owned by the defendant on which there is a building numbered 43-45. Both buildings are supported in part by a common party wall which extends southerly from Hanover Street a distance of about 30.54 feet. (No controversy exists with respect to this will.) Starting from the end of this party wall and extending southerly an additional distance of about 52.88 feet there is a brick wall built entirely upon the defendant's land. Both buildings are supported in part by this wall, and the easterly ends of the timbers and floor supports of the plaintiff's building rest upon it. The questions here involved have to do only with this wall.
The wall in question appears to have been built sometime before October 15, 1872. On that date the then owner of the plaintiff's premises executed a lease of the premises in which there was a reference to a license given by the defendant's predecessors in title to use the wall for the support of the timbers of the leased premises.
On March 18, 1881, one Farrington, who then owned the plaintiff's premises, executed and delivered to certain persons then owning the defendant's premises as trustees a duly acknowledged instrument whereby Farrington expressly disclaimed 'any right or interest in' the wall in question and agreed on behalf of himself, his heirs, representatives and assigns to remove the timbers from the wall whenever requested to do so by the trustees. Farrington further promised on behalf of himself, his heirs, representatives and assigns that 'neither I nor they will ever claim any right to place said timbers in said wall or to use said wall in any manner inconsistent with the full ownership, use and enjoyment of said wall and the land under the same by the owner thereof.'
On February 2, 1912, the aforementioned trustees conveyed away, by a trustee deed without covenants, the premises now could by the defendant.
No right or easement relating to the wall was ever expressly granted to the plaintiff or his predecessors in title.
The defendant's building is in a very poor state of repair and the defendant desires to demolish it, and has commenced to do so. Since the demolition will include the tearing down of the wall in question, the defendant on March 27, 1956, requested the plaintiff in writing to remove the timbers of his building from the defendant's wall. The plaintiff brought the present suit to enjoin the destruction of the wall.
The judge found that when the wall was first used as a support by the plaintiff's predecessors in title the use was permissive and not adverse; that neither the plaintiff nor his predecessors in title ever claimed or asserted any right or easement to use the wall adverse to the defendant or his predecessors in title; and that until about March 27, 1956, the use of the defendant's wall by the plaintiff and his predecessors in title 'was at all times with the consent and permission of the defendant and his predecessors in title.' The judge concluded that 'the plaintiff has not acquired by grant, by prescription, or otherwise any right or easement for the use of the defendant's wall for the support of the plaintiff's building; that the plaintiff has no right to countinue to use said wall for the support of his building or the timbers or any other part of said building; that he is required to remove said timbers in so far as they rest upon or are supported by the defendant's wall; and that the defendant has the right to remove said wall from his premises.'...
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