286 Mass. 339 | Mass. | 1934
This is a suit in equity to enforce compliance with building restrictions by compelling the removal of a refreshment stand from land of the defendant. The trial judge indorsed on the bill that after hearing he found and ruled that “the allegations in the within bill of complaint are true; that the defendant has violated the restrictions in his deed contained; that the plaintiffs are not guilty of laches and there was no unreasonable delay on their part in bringing the within bill nor anything showing either actual consent or passive acquiescence on their part.” A decree was entered in favor of .the plaintiffs. The defendant appealed. The evidence is reported in full. The defendant does not now dispute the existence or validity of the building restrictions, nor contend that his building was permitted under them. He does not question that owners of the estates of the plaintiffs are entitled to enforce those restrictions. The only defences argued on the merits are laches by the plaintiffs and acquiescence by them in .the constructions of the defendant.
The defendant filed a request for report of the material facts. G. L. (Ter. Ed.) c. 214, § 23. On this request the trial judge wrote in substance that his statement indorsed on the bill of complaint and quoted above contained a recital of material facts and he had nothing to add. Whether this was a full' compliance with the statute in respect to the defence of laches need not be considered because the defendant has not put himself in a position to question its sufficiency. Snow v. Boston Blank Book Manuf. Co. 153 Mass. 456. Building Inspector of Salem v. Gauthier, 259 Mass. 615. The defendant has suffered no harm because the entire evidence is in the record. In these circumstances this court examines the evidence and decides the case on its own judgment, but a decision by the trial judge upon oral testimony will not be reversed unless plainly wrong. Lindsey v. Bird, 193 Mass. 200, 201.
Whether there was laches or acquiescence on the part of the plaintiffs was a question of fact. There is ample evidence that there was no laches or acquiescence on the part
Decree affirmed with costs.