259 Mass. 86 | Mass. | 1927
The defendants are owners of land in the town
of Conway, which they hold in trust “to be forever kept open as a public playground for the use and benefit of all the public school children of Conway, under the control and management of the trustees for the time being, upon which said trustees may erect such structures and fit up the same in such manner as shall best conduce to the purposes designed ...” and which, since May, 1916, had been used in accordance with the trust as a public playground. They also own, as appurtenant to this land, a right of way “for teams to pass and repass” over the land of the plaintiff to a public way. The plaintiff, owner of adjoining premises, complains that the defendants “have consented to, permitted and allowed” this land to be used by the public school children and by persons beyond the age of public school children for games of baseball, and that baseballs are thrown and batted upon her premises, injuring her garden, breaking windows in her
The case is before us upon her appeal from an interlocutory decree sustaining a demurrer to the bill, and a final decree dismissing the bill.
The defendants set out many causes of demurrer. Two causes of complaint — permitting objectionable use of the premises for baseball, and wrongful use of the right of way by persons resorting to the playground — are set out in the. bill; but they are so connected that there is no weight in the objection that the bill is multifarious. Bliss v. Parks, 175 Mass. 539, 543. Hermanson v. Seppala, 255 Mass. 607, 610. Mesisco v. Giuliano, 190 Mass. 352, cited by the defendants, is not controlling here.
This court has jurisdiction of the subject matter. Stevens v. Rockport Granite Co. 216 Mass. 486. Irreparable damage is not essential where repeated trespasses are alleged. O’Brien v. Murphy, 189 Mass. 353. The plaintiff’s remedy at law is not so adequate and complete that equity should refuse jurisdiction. Damages in an action at law for such injury as she alleges would not prevent continued injury in the future. Stevens v. Dedham, 238 Mass. 487.
The bill is not directed to secure the performance of the terms of the trust for the public. The plaintiff is seeking a remedy against wrongs to her in her capacity as a landowner.
The bill alleges injuries arising since May 17, 1926, and was filed June 10, 1926. It cannot properly be held that loches appears on the face of the bill. If the date, 1926, is a clerical error, the delay admits of explanation, and no harm appears to have resulted to the defendants. Stewart v. Finkelstone, 206 Mass. 28, 36.
These causes of demurrer are not well taken.
There remains only to consider whether a case entitling the plaintiff to relief has been stated. The allegations in regard to injury caused by the driving of baseballs upon the plaintiff's premises fall short. There is no allegation that the defendants themselves have batted or driven balls to the plaintiff’s damage. There is no allegation that they have so laid out the portion of their land to be used for games of baseball that a reasonable person would anticipate that balls would be batted upon the plaintiff's property in the ordinary course of the games. There is no allegation that they can so manage and conduct the playground that no injury to the plaintiff will result. The plaintiff stops with the assertion that she is informed and believes that they can. There is no allegation that damage to the plaintiff’s premises is a necessary consequence of the existing layout of the playground. We find no allegations setting out conditions created by them which call for action on their part, to guard against injury reasonably to be expected as a consequence of those conditions. It is not what they have done that is complained of. It is what others have done and the defendants have not prevented. Nothing is set out to show invitation or encouragement to those others to commit the injurious acts. Cases like Bostock v. North Staffordshire Railway, 5 DeG. & S. 584, Rex v. Moore, 3 B. & Ad. 184, Walker v. Brewster, L. R. 5 Eq. 25, Chibnall v. Paul & Son, 29 Wkly. Rep. 536, do not apply. All that definitely appears is, that the defendants hold title to the playground.
The allegations with regard to the wrongful use of the right of way go further. They charge a use by the defend
A general use of the plaintiff’s land by the dominant owner and by large numbers of persons at his invitation to pass and repass on foot is, on its face, greater than a right merely “for teams to pass and repass.” See Davenport v. Lamson, 21 Pick. 72, 74; Atwater v. Bodfish, 11 Gray, 150.
Although the allegations are less specific and full than good pleading demands, the bill states a cause in equity. The demurrer should have been overruled.
Decree reversed.
