294 Mass. 491 | Mass. | 1936
Before March 13, 1933, the plaintiffs brought a suit in equity against the defendant, which involved the existence and location of a right of way from the plaintiffs’ land west of Furnace Street, in North Adams, over land of the defendant, also west of Furnace Street, to that street. The case was duly referred to a master, who filed a report which was confirmed by an interlocutory decree. The master found facts showing that the plaintiffs had a right of way by prescription over the defendant’s land and fixing its location. A final decree was entered on March 13, 1933, establishing in favor of the plaintiffs a right of way as described in said decree. 'No appeal was taken by the
The final decree reads as follows: "This cause came on to be heard and was argued by counsel and thereupon, upon consideration thereof it is ordered, adjudged and decreed that a right of way be and hereby is perpetually established in favor of the land described in the plaintiffs’ bill and now owned by the plaintiffs, over a strip of land approximately ten feet wide, described as follows: — Beginning at a point on the Westerly line of Furnace Street as established for the purpose of this case, (being the line of wall described as a Plank Retaining Wall and shown on Plan received in evidence as Defendant’s Exhibit 6), which point is 30 feet Southerly from the point formed by the intersection of the Southerly line of the little house extended Easterly with said Westerly line of Furnace Street, thence Southerly along said Westerly fine of said Furnace Street, a distance of 10 feet to a point; thence Northerly in a straight line to a point 6 feet Easterly from the Southeasterly corner of said little house on a line extending the Southerly side of said little house in an Easterly direction; thence Easterly along said Southerly line of said little house extended Easterly a distance of approximately 10 feet to a point; thence Southerly in a straight line to the point of beginning. The above describe[d(] driveway extends in a straight line from the point where it intersects the said Westerly line of Furnace Street, to a point where it intersects the premises of the Plaintiffs, and that the defendant, his agents and servants be perpetually enjoined from obstructing or interfering in any manner with said right of way. And it is further ordered and decreed that the defendant restore the surface of said right of way, on or before July 1, 1933, as nearly as may be to the condition existing before the acts of the defendant complained of, and the plaintiffs are to have costs taxed as at law in the sum of Ninety-four dollars and ten cents and execution is to issue therefor.”
Thereafter the plaintiffs filed a motion entitled "Motion to Correct Clerical Errors and Mistakes in Computations
Following the rescript in the above case, on May 11, 1935, the plaintiffs filed in the Superior Court a petition for contempt against the defendant. A hearing was had on the petition at the July sitting of the court in 1935. The trial judge ordered “the petition for contempt dismissed,” and reported the case to this court with a report of the material facts. At the hearing the master’s report in the original suit in equity was put in evidence and seven witnesses were called, including one of the plaintiffs and the defendant. Two plans, marked Exhibits 1 and 2, were in evidence and, together with a .copy of the petition for contempt, are annexed to the report. Exhibit 1 is a plan of the right of way as such right is described and determined by the final decree. Exhibit 2 is a plan which shows the right of way as it would be if the final decree were changed to conform to the plaintiffs’ theory of the force to be given to the master’s report.
It is plain that the evidence on which the facts found were based was offered by the plaintiffs for the purpose of obtaining by indirection a reconstruction of the final decree and a substitution therefor of a decree which changed the right of way described in the final decree in substantial particulars. In..the petition for contempt the merits of the original cause were not involved, and the only question for consideration
Order dismissing petition for contempt affirmed.