Triulzi v. Costa

• Decision Date: 12 November 1936
• Citation: 296 Mass. 24,4 N.E.2d 617
• Parties: TRIULZI v. COSTA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 24

4 N.E.2d 617

TRIULZI v. COSTA et al.

Supreme Judicial Court of Massachusetts, Suffolk.

November 12, 1936

Suit in equity by Erminio Triulzi against Anthony Costa and others. From an adverse decree, the plaintiff appeals.

Decree modified, and, as modified, affirmed.

Appeal from Superior Court, Suffolk County; Hanify, Judge.

A. U Rosa, of East Boston, for appellant.

W. F Kane, of Boston, for appellees.

PIERCE, Justice.

This is an appeal by the plaintiff from a final decree after confirmation of a master's report.

The master's report succinctly stated shows that the plaintiff is the owner of a parcel of land with a frontage of twenty feet on Fleet Street, in the city of Boston, with side lines of thirty three feet; that a building erected in 1849 now occupies the entire lot, that the defendants own a lot of land on North Street, in the city of Boston, which abuts on the rear line of the plaintiff's lot; and that the plaintiff's title does not extend to or cover any part of the defendants' land, upon which the defendants are erecting a new brick building in place of an old building.

The report further shows that the defendants have title to the premises in the rear of the plaintiff's lot up to the face of the rear wall on the plaintiff's premises; that the defendants, in the process of excavating for their new building, undermined the rear wall foundation of the plaintiff's building, entered upon his land, excavated under said rear wall, removed the old foundation and built a new foundation. Respecting these acts, which were admitted by the defendants, the master found as follows: ‘ In the process of excavating for the new Costa building the foundation of the rear wall of the Triulzi building was exposed and showed that the same was constructed of loose stone, laid dry, and in two places had been built over old wooden sewers or cesspools which had rotted away, leaving openings unsupported and partly filled with mud or silt’ ; and that ‘ This foundation without the support of the Costa land was in dangerous condition and there was likelihood that it might cave in, causing the rear wall to fall and do serious damage to both properties. Further excavation was ordered stopped by the City Building Department on the Costa property until the Triulzi foundation and wall was made safe. Thereupon arrangements were made by the Costas' contractor to shore up and carry the weight of the Triulzi rear wall by means of steel beams, and while so carried said contractor removed the old foundation under the rear wall of the Triulzi building and built under said wall a new foundation of concrete, which foundation was carried to the same depth as the foundation for the new Costa building, viz. 9 1/2 feet below the grade of North Street, and an average depth of over 10 feet below the grade of Fleet Street.'

St.1907, c. 550, relative to the construction, alteration and maintenance of buildings in the city of Boston, provides in section 19: ‘ All excavations shall so be protected, by sheet piling if necessary, by the persons causing the same to be made, that the adjoining soil shall not cave in by reason of its own weight. It shall be the duty of the owner of every building to furnish, or cause to be furnished, such support that his building shall not be endangered by any excavation: provided, that the owner of any building which is endangered by an excavation carried by an adjoining owner more than ten feet below the grade of the street may recover the expense so caused of supporting such building from the persons causing such excavation to be made. All permanent excavations shall be protected by retaining walls....