Town of Boylston v. McGrath

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; WHITTEMORE
• Citation: Town of Boylston v. McGrath, 204 N.E.2d 906, 348 Mass. 640 (Mass. 1965)
• Decision Date: 03 March 1965
• Parties: TOWN OF BOYLSTON v. James J. McGRATH et al.

Page 906

204 N.E.2d 906

348 Mass. 640

TOWN OF BOYLSTON v. James J. McGRATH et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Jan. 6, 1965.

Decided March 3, 1965.

John W. Fellows, Town Counsel, for plaintiff.

No argument of brief for defendants.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

WHITTEMORE, Justice.

This is a bill in equity to enjoin the defendants from maintaining an excavation in adjoining land which deprives the plaintiff's land of lateral support. The bill alleged that because of such excavation the land of the plaintiff has caved in and fallen on the defendants' land and such subsidence is continuing. The relief sought includes restoration of support and damages.

The defendant McDonald filed no pleading. The defendant McGrath (hereinafter, the defendant) filed a plea in abatement and a plea in bar both of which were sustained in the Superior Court on allegations to the effect that the issues had been fully heard in an action of tort between the same parties in the Superior Court in which the finding had been for the defendant. The plea in bar alleged that '[e]vidence introduced at the trial on the question of damages was [as] to the amount of fill required to restore the * * * [plaintiff's] land to its original state, the angle of repose necessary to support such land * * * and the value of the amount of land necessary * * * [for restoration]. Plans and charts were introduced * * * showing the property lines * * * and the angle of repose necessary * * *. The same factual claim as introduced in evidence in the prior case * * * [is] alleged in the * * * present bill. The * * * [plaintiff] at no time * * * sought to amend its declaration nor to amend for hearing * * * [in] Equity.'

The town's appeals challenge the interlocutory decrees and the final decree that dismissed the bill as against McGrath.

We have examined the papers in the earlier action at law. The declaration is in two counts, the first for direct trespass on the plaintiff's land ('broke and entered the plaintiff's close') and the second for conversion of soil removed from the plaintiff's land. 'The Findings of Fact, Rulings of Law and Decision' ¹ note that there were specifications grounded on the allegations of trespass and conversion. The judge found that the plaintiff town had not sustained its burden of proof to show trespass or conversion. Further that '[i]t was in the requests * * * and in the argument that, for the first time, the true theory behind * * * [the town's action] was revealed. These requests for rulings, together with the argument, were based upon the right of * * * [the town] to lateral support of its land. Neither in pleadings or specifications nor in the evidence had * * * [the town], in any way, directly or indirectly intimated that it was seeking to protect its right to lateral support * * * claiming damages for a violation of this right.' The judge ruled that the defendant could not be supposed to come prepared to defend a cause of action of which he had no notice, denied the requests as inapplicable, and found for the defendant.

The record before us does not include any evidence taken at the hearing on the pleas. The indorsement on each plea, 'Sustained,' imports that the substance of the matter set out in the pleas was established. The basis for the disposition of the prior action is conclusively shown by the record therein, but the record may be explained by extrinsic evidence. Gallo v. Foley, 299 Mass. 1, 5, 11 N.E.2d 803.

Judged by the respective pleadings the plaintiff's present suit is not barred by the principle of res judicata. Plainly the new allegations call for the application of a different rule of substantive law from that invoked in the first action. Diebold Safe & Lock Co. v. Morse, 234 Mass. 17, 124 N.E. 429. Burke v. Willard, 249 Mass. 313, 144 N.E. 223. Sandler v. Silk, 292 Mass. 493, 499, 198 N.E. 749. See Magaletta v. Millard, 346 Mass. 591, 596, 195 N.E.2d 324. These cases, in substance, apply the rule that 'if the plaintiff misconceives his action, or the declaration is defective, and he fails in his suit by reason of such defect or misconception, he may sustain a new action.' Livermore v. Herschell, 3 Pick. 33, 88, 20 Mass. 33, 38.

But, beyond this, the allegations of the respective pleadings are of different facts. The allegations of the declaration in the prior action speak of actual entry on the plaintiff's land and acts thereon. The present allegations describe acts taking place on the defendants' land only, but having an effect on the plaintiff's land. The present allegations are therefore not essentially the same, restyled and characterized to be appropriate to a different legal theory. Hence, looking only at the pleadings in the two suits, those cases that hold that a second suit is barred if it merely invokes a new theory for relief based on the same facts are inapplicable. Cotter v. Boston & No. St. Ry. Co., 190 Mass. 302, 76 N.E. 910. Franklin v. North Weymouth Cop. Bank, 283 Mass. 275, 279-280, 186 N.E. 641. Mackintosh v. Chambers, 285 Mass. 594, 596-597...