286 Mass. 487 | Mass. | 1934
The plaintiff seeks by this petition, filed on August 26, 1932, to have the defendants adjudged in contempt of a final decree entered on July 11,1922, after rescript pursuant to decision in Bacon v. Onset Bay Grove Association, 241 Mass. 417, where at page 419 is a plan showing all the real estate involved. In that decree was an injunction perpetually restraining the defendants and each of them and their agents, servants or attorneys from making any excavations and “from erecting or maintaining any other building or structure on Pavilion Park or committing any other acts which will impair, effect [sic] or interfere with the plaintiff’s outlook and view which she now has from lot numbered 226 owned by her” and “from committing any act in said Pa
Submission of the case upon an agreed statement of facts without reservation is a waiver by the parties of all objections to the forms of procedure. Russell v. Loring, 3 Allen, 121, 125.
The facts material to this decision are these: The defendants had notice of the decree. In May, 1931, they permitted a miniature golf course to be constructed on Pavilion Park at the intersection of Onset and Union avenues. This consisted of mounds, excavations, miniature fairways and artificial landscaping, together with a system of illumination using poles fifteen feet in height, drop lights and a network of electric wiring. From June, 1932, to date, the defendant Community Theatres, Inc., has operated this golf course. At about that date it also excavated, installed and erected on Pavilion Park opposite the plaintiff’s property, a shuffle board game, so called, with a similar system of illumination and a solid foundation with two alleys, each about four feet
The only issues argued by the defendants are that (1) the lighting of Pavilion Park by posts and lights and (2) the erection and maintenance of the sign do not constitute violations of the decree of July 11,1922.
There was no error in adjudging the defendants guilty of contempt. The various acts shown by the agreed facts to have been committed by the defendants and included in the finding as amounting to contempt were in direct violation of the terms of the decree of July 11, 1922, as already quoted. The posts for the elaborate system of illumination could not have been set up as a practical matter without making excavations and maintaining structures in the face of positive prohibition. The defendants contend that the various uses and acts committed by them in the two particulars argued by them are reasonable and therefore not impairments of the easement of the plaintiff. The sole point to be considered is whether the decree
The plaintiff contends that the decision of the single justice did not go far enough in that the construction and maintenance of the miniature golf course and the shuffle board game are also in violation of the decree. That contention is based on the prohibition against “making any excavations” on the park and the mandate to refill excavations made by them and to regrade, to resod, or to sow with grass seed portions of the park theretofore mutilated by them, and thus to restore it to its condition before the defendants began operations. The decree by its words expresses the plain implication that the park was to be restored to its state of natural beauty and must not thereafter be marred in that particular by the forbidden conduct. It is clear also that the excavating for the miniature golf course and the construction of its artificial mounds and other appurtenances and incidentals, and the alleys forty feet in length, are violations of the decree. They involved excavations and in some particulars interference with the view from the estate of the plaintiff.
The defendants have all appeared generally and joined in a single brief. See Peabody Gas & Oil Co. v. Standard Oil Co. of New York, 284 Mass. 87. They have raised, no question but that all are liable if any is liable. Armstrong Cork & Insulation Co. v. Walsh, 276 Mass. 263, 273. Daly v. Amberg, 126 N. Y. 490. Fowler v. Beckman, 66 N. H. 424. In re Reese, 47 C. C. A. 87. Seaward v. Paterson, [1897] 1 Ch. 545. In re Lennon, 166 U. S. 548.
The findings of the single justice are to be modified so as to declare that the acts of the defendants in paragraphs 4, 8, 10, 11 and 13 of the agreed statement of facts are in
Ordered accordingly.