Swensen v. Marino
| Decision Date | 12 September 1940 |
| Citation | 306 Mass. 582,29 N.E.2d 15 |
| Parties | FRED E. B. SWENSEN v. ANTHONY MARINO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
March 6, 1940.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.
Way, Private extent of easement. Equity Pleading and Practice, Decree. Nuisance. Equity Jurisdiction, To enjoin abuse of easement To enjoin nuisance. Words, "Drift way."
In a suit in equity to enjoin improper and excessive use of a private way in hauling sand and gravel, brought by the owner of registered land whose certificate of registration made it subject to an easement "of a drift way" set forth in a deed dated in 1855 and "to the rights of all these lawfully entitled thereto," upon a proper interpretation of findings by a master, made upon all the evidence, as to the extent of the defendant's easement, a final decree limiting the defendant to use of the way merely as a "drift way" and prohibiting him from using motor trucks thereon was ordered modified to enjoin him from using it for the hauling of quantities of sand or gravel to such an extent or in such a manner as substantially to disturb the peace of the occupants of the plaintiff's property or substantially to decrease its value, and by omitting the prohibition of the use of motor trucks.
Because the legal meaning of the word "nuisance" would have to be determined by the defendant at his peril in circumstances as they arose in the future, a phrase in a decree, in a suit in equity to enjoin improper use of a right of way, which enjoined the defendant from a use "as will by noise or dust constitute a nuisance," was ordered changed to enjoin him from so using the way as substantially to disturb the peace, comfort, or enjoyment of persons of ordinary sensibilities occupying the plaintiff's premises or unreasonably to diminish the value thereof.
BILL IN EQUITY filed in the Superior Court on July 5, 1939. A final decree was entered by order of Brown, J., enjoining the defendant, his servants, agents and employees "from making or allowing any use of the way over plaintiff's land except as a drift way, and from allowing or permitting said way to be used by motor trucks," and "from causing or allowing any use of the said drift way as will by noise and dust constitute a nuisance." The defendant appealed.
R. W. Higgins, for the defendant. Elliott V. Grabill, for the plaintiff.
The plaintiff complains that the defendant has been using his right of way over the plaintiff's land on Franklin Street in Holbrook illegally and in excess of the defendant's rights by driving motor trucks at frequent intervals with heavy loads of sand and gravel from land west of the plaintiff's land to Franklin Street.
Both parties apparently assume, and the master finds, that the defendant has a right of way appurtenant to his land over the plaintiff's land to Franklin Street. The extent of this right is in dispute and is not determined by the notations of encumbrances upon the plaintiff's registration certificate, for although it is there stated that the land is subject to the easement "of a drift way" set forth in a certain deed from Spear to Hobart in 1855, it is further stated that the "Right of Way" shown on the plan accompanying the certificate "is also subject to the rights of all those lawfully entitled thereto." The master does not find that the defendant's easement is in fact a "drift way" as described in the Spear-Hobart deed. It may be one of the "rights of all those lawfully entitled thereto" apart from that deed. These rights are not defined in the certificate of title.
The master does not set forth the precise origin of the defendant's easement so that its terms can be stated with accuracy, doubtless because the evidence was not such as to enable him to do so. He endeavors to ascertain the nature of the defendant's rights from the nature of the actual use of the way for many years and from references in ancient deeds which he uses as evidence only and which need not be set forth in detail here.
Since it is the defendant who relies upon the easement, the burden rests upon him to show that his right is extensive enough to authorize the amount and character of the use which he has made of the way. Hooten v. Barnard, 137 Mass. 36 . Bigelow Carpet Co. v. Wiggin, 209 Mass. 542 , 547, 551. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp. 284 Mass. 100 , 105.
The master finds that the way has been used for teaming cordwood and fence posts from the back land and at one time for carting dressing to two or three gardens located there and carting out produce from them. "Some seventy-five years ago" sand was carted out "by horse and team" at the rate of "two or three loads every two or three years for a period of six or seven years." More recently some peat and other material have been taken out. During the past few years a casual load of gravel has been taken out by truck. For two or three years before the defendant purchased the back land the way was not used at all and became overgrown with grass, brush and bushes, although it was still distinctly visible on the land. It is clear that during the many years of the existence of the way, its use was intermittent and generally infrequent, except perhaps when cordwood was being cut and carted off. The way is, however, the only present means of access to a large tract of land.
The master makes an ultimate finding as to the nature of the defendant's right of way in these words: "Upon all the evidence I find that the right is impressed with the limitation that it must be used with reasonable regard to the comfort and enjoyment of the owner of the servient estate, and not in such manner as to disturb his peace or the value of his property." Since the evidence in general is not reported, and this finding is not in conflict with subsidiary findings, it must stand, indefinite as it is, as a limitation upon the defendant's rights. MacLeod v. Davis, 290 Mass. 335 , 338. Dodge v. Anna Jaques Hospital, 301 Mass. 431 , 435. Zak v. Zak, 305 Mass. 194, 196. But the finding must be construed fairly with the whole situation in mind. We do not think it means that every trifling disturbance of the plaintiff or the least possible detriment to his property is prohibited. A right of way so strictly limited could hardly be exercised at all. The sentence quoted should be balanced by implying the adverb "substantially" before the verb "to disturb."
The master reports these further facts: After the defendant purchased the back land, about April 1, 1939, he widened the used portion of the way, including that part on the plaintiff's premises, to a width sufficient for two trucks to pass each other, and he placed gravel and sand upon it. By the time this suit was brought his sand and gravel operations had reached such proportions that thirty or forty truck loads passed out in a day, making from sixty to eighty trips out and in. This "perforce" raise...
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