217 Mass. 172 | Mass. | 1914
The plaintiff and the appellant, the defendant corporation hereinafter referred to as the defendant, are owners in fee of contiguous estates, the division line of which has been established by the joint deed of their respective predecessors in title. By this instrument no provision is made that either estate could be subjected equally to a partition wall erected for their joint benefit, and the disturbance of the soil in placing part of the underpinning stones in the plaintiff’s land to support the wall of the building erected on the defendant’s land was unlawful. The trespass so long as the stones remained, even if no portion of the superstructure projected, having been continuous, the plaintiff, instead of proceeding at law for damages as they accrued, can resort to equity where injunctive relief can be given and accrued damages assessed. Tucker v. Howard, 128 Mass. 361. O’Brien v. Murphy, 189 Mass. 353, 357. Downey v. H. P. Hood & Sons, 203 Mass. 4. Curtis Manuf. Co. v. Spencer Wire Co. 203 Mass. 448. Szathmary v. Boston & Albany Railroad, 214 Mass. 42.
The bill alleges, and the presiding judge has found, that the defendant had leased the premises to the defendants Louis Rosenbaum and Henry Rosenbaum for a term of years, which has not expired, and the work was done for his own advantage by the defendant Kresge, a sublessee. If the sublessee had the right under the terms of the leases to make alterations, including a partial reconstruction of the wall, the permission is limited of course to the estate demised. The plaintiff even does not contend that the original lease constituted the lessees the defendant’s agents with authority to appoint subordinate agents to encroach upon his land. It is not alleged, nor is it found that the defendant’s officers with knowledge of what was going on, or proposed to be done, participated in, or assented to, the misappropriation, or intend to assert upon the expiration of the lease any right to have the footing stones remain for the benefit of the corporation. The defendant, while the lease is outstanding, cannot under the circumstances without committing a trespass enter upon the demised estate for the purpose of removing the stones, the displacement of which evidently would subject the tenant to' serious annoyance and inconvenience in the enjoyment of the leasehold. Nelson Theatre Co. v. Nelson, 216 Mass. 30. It is
If the specific prayers are read, the plaintiff asks that the several lessees, and not the defendant, be ordered to restore his land to its former condition, and the judge before whom the merits were tried decreed relief only against the actual transgressor. A general prayer is added, but this does not enlarge the case stated by the bill. Fordyce v. Dillaway, 212 Mass. 404, 411. The plaintiff on the findings, which neither party questions, and which as has been said exonerated the corporation, was entitled to a mandatory injunction directing Kresge to remove the stones, and to restore the premises within a time to be stated in the decree with payment of compensatory damages already suffered. Lynch v. Union Institution for Savings, 158 Mass. 394. Downey v. H. P. Hood & Sons, 203 Mass. 4.
The wording of the memorandum of decision indicates that the judge was of opinion that an injunction in this form should not issue, for he assessed damages which are to be paid if Kresge, who apparently is given the option, did not effect the restoration within a reasonable time. The plaintiff has not appealed, and if the final decreee, which in this particular only follows the decision, had not gone further, the defendant would not have been aggrieved. The decree however instead of dismissing the bill with costs as the memorandum ordered, required the corporation to execute and deliver a written instrument releasing and quit-claiming any right, title or interest in the plaintiff’s land, and waiving or disclaiming any right to an easement therein. The plaintiff relies upon the familiar doctrine, that a court of equity, having once acquired, will retain jurisdiction and give full relief. But, even if the findings were disregarded, it cannot be presumed in the absence of evidence, or of circumstances from which the inference properly can be drawn, that the defendant will endeavor to avail itself of an advantage founded on an unjustifiable tort. A belief however honest that it might do so, with nothing more, is insufficient ground for affirmative relief. The decree as to the lessees and sublessee could not, and moreover did not, subject the plaintiff’s land to a servitude, which might ripen into an easement appurtenant to the reversion. The defendant as lessor
Ordered accordingly.