New York Life Insurance v. Embassy Realty Co.

289 Mass. 528 | Mass. | 1935

Lummus, J.

The plaintiff is the holder of a first mortgage upon registered land, a strip of which, adjoining the theatre lot of the defendant, is subject to a right of way appurtenant to that theatre lot. The owners of the equity of redemption of the first mentioned land endeavored to create an easement, appurtenant to the theatre lot, to maintain a fire escape which overhangs the strip used for the way and is supported by the roof of the building on the first mentioned land. A bill by the plaintiff to restrain the maintenance of the fire escape was dismissed “without prejudice to any rights the plaintiff has to proceed at law,” and the plaintiff appealed.

Interesting questions arise upon the contention of the defendant, on grounds not material to this opinion, that its easement, although junior in time of creation, is superior to the plaintiff’s mortgage. This contention need not be considered, for on the plaintiff’s appeal the final decree could not be modified in favor of the defendant. Kilkus v. Shakman, 254 Mass. 274, 280. Beacon Oil Co. v. Maniatis, 284 Mass. 574, 577. Another point disposes of the case.

Even if the easement lacks validity against the plaintiff’s mortgage, it does not follow that the plaintiff is entitled to relief. The plaintiff has not foreclosed and is not in possession. The mortgagors or their grantees remain rightfully in possession and control. Under such circumstances, the plaintiff can obtain relief only for waste, or other acts impairing the value of the property as security. Delano v. Smith, 206 Mass. 365, and cases cited. Young v. Haviland, 215 Mass. 120, 124. See also Massachusetts Home Missionary Society v. Sirianni, 252 Mass. 352; Judkins v. Charette, 255 Mass. 76, 81. The judge found expressly that the maintenance of the fire escape has not reduced the value of the property nor impaired the plaintiff’s security. The maintenance of the fire escape can never result in an easement by prescription upon registered land. G. L. (Ter. Ed.) c. 185, § 53. The plaintiff therefore has no cause to complain of the final decree.

Decree affirmed with costs.