O'Connor v. Slachetka

237 Mass. 228 | Mass. | 1921

Braley, J.

The defendant not having demurred but having answered generally, the defence that the plaintiff had a plain and adequate remedy at law is not open. Dearth v. Hide & Leather National Bank, 100 Mass. 540. And, no exceptions having been taken to the master’s report, the question is, whether the decree granting injunctive relief and assessing damages is within the frame of the bill and in accordance with the master’s material findings.

The plaintiff’s title having been established to the satisfaction of the master whose conclusion does not appear as matter of law to be erroneous, (Burrill v. Nahant Bank, 2 Met. 163, 166,) the only issues of fact were, whether the defendant had unlawfully entered upon the plaintiff’s land and cut and carried away her wood and timber, and, if so, whether the trespasses had been persistent and frequent. The master having found in favor of the plaintiff, she is entitled on the record not only to a permanent injunction restraining the defendant, his servants, or agents, from continuing to trespass upon the premises described in the bill, but to the damages shown by the report to have been suffered from his wrongful acts. O’Brien v. Murphy, 189, Mass. 353, 357. Perry v. Pye, 215 Mass. 403, 413. The decree should be affirmed with costs. • , ■,

Ordered accordingly.