253 Mass. 378 | Mass. | 1925
The facts are set out in Gamwell v. Bigley, 250 Mass. 140, where it was decided that the plaintiff was entitled to injunctive relief and his exceptions were sustained. Following that decision a decree was entered in the Superior
It is elementary that a decree in equity must conform to the frame of the bill. The decree must be restricted to the allegations in the pleadings as well as to the facts in the case. Hanscom, v. Malden & Melrose Gas Light Co. 220 Mass. 1, 9. King v. Connors, 223 Mass. 305. Pickard v. Clancy, 225 Mass. 89, 95. Donohue v. White, 247 Mass. 479, 482.
The'master’s report shows that the defendant in the year 1908 built upon the right of way a brick coal bin “ten feet north and south and four feet east and west,” and about the same time a wagon shed was moved onto the right of way. In 1923 a frame building connecting with the “store” was altered by changing the frame walls to brick, substituting steel beams and girders for the wooden timbers, and making other alterations. The master found that the brick store and frame building were two buildings. It was decided in Gamwell v. Bigley, supra, that this finding, that the brick building and the frame structure constituted distinct buildings, was supported by the evidence, and that the way in question could no longer be lawfully occupied by the maintenance of the new or reconstructed building spoken of as the frame building.
The plaintiff in effect alleges in his bill, that in 1904 there was a frame building on the defendant’s premises, a portion of which extended over the right of way; that in 1923 the defendant made alterations in this building by taking down the walls and replacing them with brick walls; and “the building itself . . . [was] removed and destroyed and that
The decree from which the defendant appeals ordered the defendant forthwith to remove so much of the buildings as extends into the right of way, but allowing the “store” to remain until removed or destroyed. By ordering the defendant to remove the buildings the decree is broad enough to require the defendant to remove forthwith the wagon shed and the brick coal bin, which, we understand from the master’s report, are located in whole or in part upon the right of way. These two structures are not referred to in the plaintiff’s pleadings. The frame of the bill shows that the plaintiff was seeking relief because of the alterations in the frame building in 1923, at which time the defendant began this work. No reference is made to the wagon shed which in 1908 was moved in such a way that a portion of it stood on the right of way, nor is there any reference to the coal bin which was constructed entirely on the way at about the same time. The prayers for relief do not concern these two structures; and although the bill alleges that the defendant by making the alterations in 1923 is no longer entitled to maintain “ any other building upon . . . said right of way,” this statement cannot be construed to include the structures erected or altered prior to 1923. The plaintiff sought relief for the work undertaken at that time; he did not allege any
In view of the .stating part of the bill and the prayers for relief, the decree is to be modified by excepting from its operation the wagon shed and coal bin. Bushnell v. Avery, 121 Mass. 148, 149. Fordyce v. Dillaway, 212 Mass. 404, 411. We assume, although there is no specific finding on this point, that the wagon shed is still standing. The coal bin according to the master’s finding is in its original position. So far as the decree concerns the frame building it follows the assertions in the bill and the prayers for relief, and rests on the facts found by the master. Gamwell v. Bigley, supra.
The defendant also objects to the decree because he is ordered “forthwith” to remove the obstruction. The word “forthwith” meant no more than this, that he should use due diligence in complying with the order of the court and remove the obstruction as soon as practicable. Smith v. Scottish Union & National Ins. Co. 200 Mass. 50, 52, 53. Everson v. General Accident, Fire & Life Assurance Corp., Ltd. 202 Mass. 169, 174.
The reservation in the deed to the defendant, reserving to the grantor and his heirs a right of way ten feet wide, stipulated, “The right of said grantor and his heirs and assigns to use said way — so covered by said buildings shall not begin until the present buildings situated upon the land' herein conveyed are removed or destroyed.” We do not understand that any question is involved as to the time when the plaintiff’s right to use the way .begins, and we do not consider this question.
It follows that the decree is to be modified by excepting from its operation the structures known as the wagon shed and brick coal bin, and as so modified it is affirmed.
Ordered accordingly.