273 Mass. 310 | Mass. | 1930
This is a bill in equity to compel the removal by the defendant of a certain fence and foundation thereto, and certain sewers, upon land of the plaintiff, and to restrain the defendant from trespassing upon the plaintiff’s land. Upon the filing of the answer the case was referred tó a master who duly filed his report. No objections or exceptions were taken to the report and it was confirmed by an interlocutory decree from which neither party appealed. The case comes to this court on the appeal of the defendant from a final decree for the plaintiff.
The report discloses that in 1866 a tract of land in the rear of Grand Street, in the city of Worcester, six inches in width, along the most northeasterly lines of lots numbered thirty-nine, forty, forty-seven and fifty-two and the most northeasterly lines of Carson Court and Grand Street Court as shown on a plan of “House Lots” belonging to Eli Goulding, was “reserved” out of the Goulding land, as the lots above enumerated were sold in 1866, 1867 and 1869. Lots forty-six, forty-seven and fifty-two as shown on the plan were bounded respectively on the northwest and southeast by Carson Court. In 1869, these lots were conveyed to Michael Loughlin, the
Prior to 1911 the city of Worcester installed a public sewer in Grand Street Court, and prior to 1915 installed a public sewer in Carson Court. Several houses have stood on both sides of Grand Street Court and of Carson Court and these courts have been piped with city water for the past forty years.
Since 1889 all conveyances to the defendant and its predecessors in title are bounded on land of Troy (lots thirty-eight, thirty-nine), Grand Street Court, land of Gardner, Carson Court and land of Loughlin, with no mention of the six-inch strip reserved by Goulding. Since 1911 the defendant has maintained on its premises a factory building about seven feet from its westerly boundary line, and another building facing on the land of the Norwich and Worcester Railroad Company, and it employs about one hundred ten men. In1 1915 its predecessor in title constructed an iron fence and a concrete base along the westerly line of its property. On conflicting evidence the master found “that neither the fence nor the foundation . . . encroach upon the land owned by the plaintiff
The facts found present a case of repeated and continuing trespass for which an injunction should be granted to prevent future trespasses for the reason that prosecutions at law would be attended by trouble and expense entirely disproportionate to the amount of damage which could be recovered in single actions. In a word, an action at law would not furnish an adequate redress, while in equity the present and future rights of the parties may be determined in the same proceedings.
In 1911 the defendant’s predecessor in title caused an extension of the public sewer in Grand Street Court to be laid out through the cénter of this court to its factory building. This sewer passes through the six-inch strip owned by the plaintiff, and is still maintained by the defendant. In 1915 the defendant’s predecessor in title caused an extension of the public sewer in Carson Court to be laid out running to its factory, and this sewer is still maintained through the middle of Carson Court and through the six-inch strip owned by the plaintiff. The
In respect to the relief sought by way of prohibitory injunction against the continuance of the trespasses arising from the continuance of the sewer pipes, and a mandatory injunction requiring the removal of the sewer pipes on the plaintiff’s premises and a restoration of the land which has been disturbed by the defendant in the use and maintenance of said sewer pipes, we are of opinion, in view of the facts that the trespass was unintentional, that the plaintiff was not deprived of any beneficial use
Affirmed.