Szathmary v. Boston & A.R. Co.

• Decision Date: 01 March 1913
• Citation: 100 N.E. 1107,214 Mass. 42
• Parties: SZATHMARY v. BOSTON & A. R. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 42

100 N.E. 1107

SZATHMARY v. BOSTON & A. R. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1913

COUNSEL

Wendell P. Murray and Chas. F. Smith, both of Boston, for appellant.

Geo. L Mayberry, of Boston, for appellees.

OPINION

DE COURCY, J.

In the memorandum filed by the judge who heard the case is the following: 'I find that along by the land of the plaintiff where it joins or abuts on the land of the defendant the New York Central & Hudson River Railroad, at or about the time mentioned in the bill, and its agents and servants constructed a strong retaining wall, to keep the land of the plaintiff from falling or sliding down upon the defendant's railroad tracks; that the top of said wall is substantially on the line between the parties and no part of the very top of it is on the plaintiff's land, but that the defendant, in the construction of said retaining wall made it much thicker at the bottom several feet below the surface, so that at the bottom of the wall, which is made of cement and stone, it does project into the land of the plaintiff from five to fifteen inches.' We cannot say from an examination of the evidence that the judge was plainly wrong in finding that the defendant's wall encroaches upon the plaintiff's property to a substantial extent at least, and consequently his finding of fact as to the existence of such encroachment must stand. Skehill v Abbott, 184 Mass. 145, 68 N.E. 37. But it is open to the plaintiff, who appealed from a decree in her favor, to have the correctness of it passed upon by this court and to contend that upon the facts found by the trial judge she was entitled to a mandatory injunction. May v. Gates, 137 Mass. 389; Sunter v. Sunter, 204 Mass. 448, 90 N.E. 561.

The general principle, that when one without right attempts to appropriate the property of another by conduct which will ripen into an easement, a court of equity will compel the trespasser to undo as far as possible what he has wrongfully done, is too well established for discussion. Curtis Mfg. Co. v. Spencer Wire Co., 203 Mass. 448, 89 N.E. 534, 133 Am. St. Rep. 307; Kershishian v. Johnson, 210 Mass. 135, 96 N.E. 56, 36 L. R. A. (N. S.) 402, and cases cited. The defendant's contention is that this case is one of the exceptions to this general rule, where the plaintiff suffers no substantial injury from the encroachment, and the removal of the wall would subject the defendant to so great inconvenience and loss as to be grossly inequitable, and where compensation in damages is the suitable remedy. See Lynch v. Union Inst. for Savs., 159 Mass. 306, 34 N.E. 364, 20 L. R. A. 842; Harrington v. McCarthy, 169 Mass. 492, 495, 48 N.E. 278, 61 Am. St. Rep. 298; Levi v. Worcester Cons. St. Ry., 193 Mass. 116, 78 N.E. 853; Methodist Episcopal Society v. Akers, 167 Mass. 560, 46 N.E. 381.

In these exceptional cases there always appears some element such as innocent mistake or a bona fide claim of right on the part of the defendant, laches on the part of the plaintiff or the presence of some other incident that would render inequitable the issuance of a mandatory injunction. The facts that induced the trial judge in the case at bar to limit the plaintiff's remedy to damages, are not stated in the memorandum. No substantial equivalent was given to her as was given in the case of Levi v. Worcester Cons. St. Ry., 193 Mass. 116, 78 N.E. 853, to which the judge refers. It becomes necessary then to examine the evidence in order to determine whether the plaintiff has...