289 Mass. 104 | Mass. | 1935
In 1927 one Yartigian built a theatre in
The platforms of the fire escape on the theatre at all three levels, and the stairway between the first and second levels, overhang the end of Sewall Court to a maximum extent of two to three feet. This overhang is all at a considerable height above the ground, and is close to the wall of the theatre, at a point where the use of the way could be of no benefit to the Aaronian land. The record does not show that the owner of the Aaronian land has a right to have Sewall Court kept open to the sky. The final decree was erroneous in ordering the removal of the fire escapes so far as they extend over Sewall Court. Sargeant v. Traverse Building Trust, 267 Mass. 490, 494. Carter v. Sullivan, 281 Mass. 217. Compare Levenson v. Ciampa, 251 Mass. 379. See also, as to structures which do not interfere with a right of way because underground, Kendall v. Hardy, 208 Mass. 20, 28, 29, and New York Central Railroad v. Ayer, 239 Mass. 70, 78, 79.
The theatre encroaches upon the Aaronian land itself in two respects. First, the platform of the fire escape on the theatre, at the third level, far above the ground, overhangs a piece of the Aaronian land eleven inches wide and three feet long, but causes no interference with the present use of that land. Second, a drain from the theatre runs, at a depth of eight or nine feet below the surface, about fifty-three feet through the unoccupied rear part of the Aaronian land, and a further distance through the soil of Sewall Court, to a manhole, where it empties into a sewer which runs from that manhole in Sewall Court through Sewall Street. This drain does not interfere with the use of the
The defendant Union Realty Company took from Vartigian two mortgages covering the theatre, and assigned the first one to the defendant Charlestown Five Cents Savings Bank in 1927. In 1928 Vartigian conveyed his equity of redemption to Sidney Realty Co., in which Union Realty Company held three fourths of the stock and Vartigian’s wife held the rest. A dispute arose as early as 1929 between Union Realty Company and Vartigian over a candy stand which Vartigian or his wife maintained in the theatre. On January 28, 1930, Union Realty Company, controlling Sidney Realty Co., prevented the further maintenance of the stand.
On January 30, 1930, Vartigian induced his wife’s stepbrother, the plaintiff Geragosian, to buy the Aaronian land for $6,500. Title passed to him on February 4, 1930. Vartigian then knew of the encroachments, and his purpose in inducing the plaintiff to buy the land was to control it and to make trouble for Union Realty Company. But when the theatre was built, the encroachments were unintentional on the part of Vartigian. The master does not find that Geragosian shared in the purpose of Vartigian, or is under the control of Vartigian. On June 12, 1931, Union Realty Company foreclosed its second mortgage on the theatre, and bought in the theatre at the foreclosure sale. The land and buildings of the plaintiff Geragosian are worth about $2,800. The theatre, with its land, is worth about $250,000. The cost of a new drain which would not trespass on the plaintiff’s land would be $4,300. The small part of the fire escape platform that overhangs the plaintiff’s land, it is found, “could be removed without much difficulty and without materially interfering with the defendant’s use of its fire escapes.”
This bill was filed on October 26, 1932, although the controversy had existed since early in 1932, and the fact of encroachment had been called to the attention of Union Realty Company in 1930 or 1931.
The protection .by injunction of property rights against continuing trespasses by encroaching structures has sometimes been based upon the danger that a continuance of the wrong may ripen into title by adverse possession or a right by prescription. Harrington v. McCarthy, 169 Mass. 492, 494. Cobb v. Massachusetts Chemical Co. 179 Mass. 423, 426. Marcus v. Brody, 254 Mass. 152, 155. Tyler v. Haverhill, 272 Mass. 313, 315. Other cases point out that, since trespassing structures constitute a nuisance (Codman v. Evans, 7 Allen, 431; Miles v. Worcester, 154 Mass. 511; Milton v. Puffer, 207 Mass. 416), and a plaintiff obtaining a second judgment for nuisance has a right to have the nuisance abated by warrant of the court (G. L. [Ter. Ed.] c. 243, § 3), the denial of an injunction would only drive the plaintiff to a more dilatory remedy to obtain removal or abatement. Curtis Manuf. Co. v. Spencer Wire Co. 203 Mass. 448, 452. Szathmary v. Boston & Albany Railroad, 214 Mass. 42, 45. But the basic reason lies deeper. It is the same reason “which lies at the foundation of the jurisdiction for decreeing specific performance of contracts for the sale of real estate. A particular piece of real estate cannot be replaced by any sum of money, however large, and one who wants a particular estate for a specific use, if
The facts that the aggrieved owner suffers little or no damage from the trespass (Harrington v. McCarthy, 169 Mass. 492, 494; Szathmary v. Boston & Albany Railroad, 214 Mass. 42, 45; Congregation Beth Israel v. Heller, 231 Mass. 527, 529; Crosby v. Blomerth, 258 Mass. 221, 226), that the wrongdoer acted in good faith and would be put to disproportionate expense by removal of the trespassing structures (Kershishian v. Johnson, 210 Mass. 135, 139; Marcus v. Brody, 254 Mass. 152, 155; Tyler v. Haverhill, 272 Mass. 313, 316), and that neighborly conduct as well as business judgment would require acceptance of compensation in money for the land appropriated (Hodgkins v. Farrington, 150 Mass. 19, 24), are ordinarily no reasons for denying an injunction. Rights in real property cannot ordinarily be taken from the owner at a valuation, except under the power of eminent domain. Only when there is some estoppel or loches on the part of the plaintiff (Nelson v. American Telephone & Telegraph Co. 270 Mass. 471, 480, 481; Malinoski v. D. S. McGrath, Inc. 283 Mass. 1, 11), or a refusal on his part to consent to acts necessary to the removal or abatement which he demands (Tramonte v. Colarusso, 256 Mass. 299), will an injunction ordinarily be refused. It is true that in Methodist Episcopal Society in Charlton City v. Akers, 167 Mass. 560, the court refused an. injunction for the removal of a building from a small piece of rough rural land; that in Harrington v. McCarthy, 169
Nothing takes this case out of the general rule. No estoppel or loches is shown. The motives of Vartigian cannot impair the property rights of Aaronian or his grantee Geragosian. The final decree rightly restrained the further use of the drain across the plaintiff’s land, and ordered the removal of the fire escape platform so far as it overhangs said land. The appeal claimed from the order for a decree need not be considered, for no such appeal lies. Graustein v. Dolan, 282 Mass. 579, 582, 583. The final decree is modified by striking out the provision for an injunction requiring removal of the fire escape overhanging Sewall Court, and as modified is affirmed with costs.
Ordered accordingly.