Tehan v. Security Nat. Bank of Springfield

• Citation: 340 Mass. 176,163 N.E.2d 646
• Parties: John F. TEHAN and another v. SECURITY NATIONAL BANK OF SPRINGFIELD and others.
• Decision Date: 21 December 1959
• Court: United States State Supreme Judicial Court of Massachusetts

Page 646

163 N.E.2d 646

340 Mass. 176

John F. TEHAN and another v. SECURITY NATIONAL BANK OF SPRINGFIELD and others.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Sept. 23, 1959.

Decided Dec. 21, 1959.

David Burstein, Boston, James F. Egan, Springfield, for plaintiffs.

Emerson S. Searle and Joseph Swirsky, Springfield, for Security Nat. Bank of Springfield.

Roger Rustein, pro se.

Before WILKINS, C. J., and WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ. CUTTER, Justice.

The plaintiffs and the defendants severally own parcels of land along a twenty foot passageway between Taylor and Lyman streets in Springfield as shown on the accompanying plan. The plaintiffs own the parcel (A) at the northwest end of the southwesterly side of the passageway. On the same side, the defendant Security National Bank of Springfield (the bank) owns a parcel (B) used for banking. Other defendants own parcels C and D on the same side. All these parcels contain buildings fronting on Main Street which runs parallel to the passageway. On the northeast side of the passageway are two parcels. That at the northwest end of the passageway (F) is owned by the defendant 445 Corporation and contains, facing the passageway, a parking area leased to the bank, and a building facing Lyman Street. Adjacent to parcel F, at the southeast end of the passageway, is a parking lot (E) owned by the defendant Rustein.

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

The plaintiffs and the defendants, respectively, have an easement in the passageway throughout its entire length and the plaintiffs and the bank own the fee to the center line of the passageway abutting their property. Rustein has rented to the bank space in his parking lot (E) and has marked the surface of the parking lot with parallel white lines so that there is a marked channel (H in the plan) for traffic over parcel E from Taylor Street to the passageway at a point opposite the east corner of the bank's property (B). The bank in 1953 built a drive-in window of cement blocks at the rear of its building. This structure 'protrudes six feet into the passageway,' and has 'a flat * * * canopy ten feet above the ground which extends nine feet into the passageway.' Adjacent to the plaintiffs' parcel A and to the bank's parcel B is a concrete sidewalk eight to ten inches high and about four to four and one half feet wide. 'An iron fire escape [built in 1943] at the rear of parcel A protrudes six feet into the passageway' and the bases extend, one seven to eight feet, and the other nine feet, into the passageway. '[N]o one complained about the encroachment of the fire escape * * * prior to the' initiation by the plaintiffs of this bill in equity against the bank and the other owners of land abutting on the passageway seeking (a) certain declaratory relief, (b) damages for the encroachment of the drive-in window, and (c) to enjoin Rustein from permitting vehicles to be parked on the passageway and the bank from conducting a drive-in banking business on the passageway and maintaining the window. No one complained about the drive-in window except the plaintiffs who complained by letter a few days prior to bringing this bill.

The southeasterly end of the passageway for some years has been entirely blocked during business hours without right by parked automobiles of persons unknown through no fault of any party. The bank and the plaintiffs have acquired the prescriptive right so to park vehicles along the southwest side of the passageway beside their respective parcels.

There 'is no material difference in kind or degree between the two obstructions [the fire escape and the drive-in window] in terms of the space they occupy.' The 'fire escape since 1943 has blocked the passageway to substantially the same extent and in the same general way as has the drive-in window.' Automobiles, whose owners use 'the drive-in window enter Rustein's lot from * * * Taylor Street, and proceed * * * between the * * * white lines [H on the plan] * * * across lot F, and enter the alley about sixteen * * * feet from the window.' In rush hours sometimes there are eight automobiles in line, 'one * * * completely in the passageway at the drive-in window, another partly in the passageway, and the rest on parcels F and E.' A normal transaction at the window consumes between thirty and ninety seconds and there are from fifty-nine to one hundred twenty-one users of the window per day. Nearly twice as many other automobile owners, not on bank business or controlled by the bank, go from Taylor Street to Lyman Street through Rustein's parking space and the northwest end of the passageway. Automobiles also do enter the passageway from Lyman Street to go to Rustein's parking space, to the bank's parking area on parcel F, or across Rustein's parking lot to Taylor Street. 'At times there is annoying congestion in the alley in which the drive-in customer is a contributing factor, as are the parking of cars against the plaintiffs' building, the blocking of the * * * [Taylor Street] end of the alley by unidentified cars, and the passage of cars not on bank business.' Such delays as occurred prior to the commencement of the bill occurred about 3 p. m., when the bank closed, and affected persons wishing to enter the passageway from Lyman Street until some one in the waiting line yielded his space. Since the commencement of the bill, 'the congestion has been controlled and alleviated by the use of uniformed' bank guards.

The case was referred to a master, who found the facts stated above. The master reached two principal conclusions, viz 'that the operation of this drive-in window and the * * * traffic into and from this alley to use the same does not unduly burden' the plaintiffs' easement, and also that the plaintiffs 'do not come into court with clean hands with respect to the physical encroachment on the passageway of this drive-in structure.' The trial judge sustained the plaintiffs' exceptions to these two conclusions as unsupported by the facts found, and confirmed the master's report as thus modified. A final decree (1) determined that each of the parties had an easement as found by the master in the passageway and that the plaintiffs and the bank 'own the land to the center line of the passageway abutting their premises and have a prescriptive right to park automobiles on the [south] westerly side of the passageway abutting their respective premises'; (2) stated that the bank's drive-in structure within the limits of the passageway is 'in violation of' the plaintiffs' easement, ordered the bank to remove it, and permanently enjoined the bank from maintaining any like structure within the limits of the passageway; (3) determined that the bank and Rustein have overburdened the plaintiffs' easement by 'channelling traffic in one way travel across' Rustein's property 'in connection with and as a part of a banking business' and restrained the bank and Rustein 'from so channelling traffic diagonally across said passageway' after the bank razes its structure; and (4) granted a jury trial to the plaintiffs on the issue of damages.

The bank, Rustein, and the owner of parcel F appealed from the interlocutory decree sustaining the plaintiffs' exceptions to the master's report and from the final decree.

1. The provisions of the final decree, that each abutting owner 'has an easement and right of passage twenty feet in width in * * * [the] passageway' and that the plaintiffs and the bank 'own the land to the center line of the passageway abutting their premises,' are justified by the master's subsidiary findings. The plaintiffs do not challenge the bank's right to an easement of passage and there is no finding of any express restriction upon the easement. See Mahon v. Tully, 245 Mass. 571, 577, 139 N.E. 797. That the passageway is a way, much used by the public (see Opinion of the Justices, 313 Mass. 779, 782-783, 47 N.E.2d 260), twenty feet wide, and in a business area tends to indicate freedom to use it for vehicles as well as on foot in much the manner of a street in respect, at least, of travel and transportation of property to and from land of abutting owners. The easement is not to be limited to such use as seemed likely to be made about the time of the conveyances which created it. In the absence of express limitations, such a general right of way obtained by grant may be used for such purposes as are reasonably necessary to the full enjoyment of the premises to which the right of way is appurtenant. ¹ Parsons v. New York, N. H. & H. R. Co., 216 Mass. 269, 273, 103 N.E. 693. Mahon v. Tully, 245 Mass. 571, 577, 139 N.E. 797. Davis v. Sikes, 254 Mass. 540, 547, 151 N.E. 291. See Kakas Bros. Co. v. Kaplan, 331 Mass. 323, 328, 118 N.E.2d 877. See also Frawley v. Forrest, 310 Mass. 446, 451, 38 N.E.2d 631, 138 A.L.R. 999, and discussion in Opinion of the Justices, 297 Mass. 559, 561-565, 8 N.E.2d 179, of the somewhat analogous easement in public ways. Cf. Swensen v. Marino, 306 Mass. 582, 585-587, 29 N.E.2d 15, 130 A.L.R. 763; Hewitt v. Perry, 309 Mass. 100, 105, 34 N.E.2d 489; Doody v. Spurr, 315 Mass. 129, 133-134, 51 N.E.2d 981; Hodgkins v. Bianchini, 323 Mass. 169, 173, 80 N.E.2d 464. Cf. also Clarkin v. Duggan, 292 Mass. 263, 266, 198 N.E. 170.

2. The drive-in window constitutes an improper obstruction of the easement. See Connor v. McKenna, Mass., 157 N.E.2d 514. See also Geragosian v. Union Realty Co., 289 Mass. 104, 109-110, 193 N.E. 726, 96 A.L.R. 1282; Ottavia v. Savarese, 338 Mass. 330, 335-336, 155 N.E.2d 432. Cf. Triulzi v. Costa, 296 Mass. 24, 28, 4 N.E.2d 617. It must be determined, however, whether under equitable principles its removal should be ordered. See Gray v. Howell, 292 Mass. 400, 403, 198 N.E. 516.

The plaintiffs are not barred by laches. The master found that the manager of the plaintiffs' property, a son of one of the plaintiffs, 'must have known of' the...