269 Mass. 537 | Mass. | 1930
The bill in this cause was brought at the same time as that in Robert v. O’Connell, ante, decided this day. The cases were heard together by .the master and by the Superior Court. The facts found by the master with reference to the origin and use of the common passageway in general use between Lyman Street and Ely Street in Holyoke and to prescriptive rights therein are the same, and need not be again set out. The land of the defendant adjoins that of Mrs. O’Connell to the south; but the passageway in actual use lies relatively further to the west thereon, and the encroachment upon the plaintiff resulting from occupation by the defendant up to the easterly line of that passageway is greater.
The Holyoke Water Power Company, which once owned all the land in the block bounded by Lyman Street, Summer Street, Ely Street and North Bridge Street except a tract fronting upon Ely Street, conveyed a parcel facing Summer Street to one Long in May of 1886, and another parcel to the plaintiff in 1924. It bounded both parcels (the former on
The special master reported a finding “upon all the evidence, that the defendant has not sustained the burden of
After hearing thereon, the judge on May 23, 1929, filed a “memorandum, ruling and order for decree” as follows: “Upon the facts found in the master’s report I rule that the respondent’s possession was adverse, that she has acquired a prescriptive right to maintain the obstruction complained of and that there is no estoppel. A decree may be entered dismissing the bill with costs.” On the same day, the clerk, by order of the judge, entered a decree confirming the report of the master, and a final decree dismissing the bill. The plaintiff appealed from both decrees. There was no error. The judge was not bound to draw the same inference as the master from the facts reported. Hawkes v. Lackey, 207 Mass. 424, 431. It was open to him, to decide that what the
Here the judge was justified in finding and holding that Long was acting with the intent to assert a right in himself inconsistent with a right of the power company to interfere with him, not pursuant to a permission which implied a continued recognition on his part of a right in the company, and permissive only in the sense that the company did not interfere when he began and that he understood that it would not interfere at any time. A holding by one in such a state of mind is adverse. Motte v. Alger, 15 Gray, 322. See Brown v. King, 5 Met. 173. As it was also open, continuous, uninterrupted for more than twenty years, the defendant has acquired prescriptive rights. Wheeler v. Laird, 147 Mass. 421. The cases cited by the plaintiff which hold that a use beginning by permission must be assumed to continue to be permissive until evidence is introduced which changes its character, and until changed, cannot be adverse, have no application here. The use here did not begin by permission nor was it permissive within the meaning of those decisions. Warren v. Bowdran, 156 Mass. 280.
The entry of an interlocutory decree confirming the report but omitting any reference to the exception, does not preclude the court from acting upon the real situation. In substance every fact upon which the final decree rests was set out in the report. The ruling that the possession was adverse was reached by drawing from what was stated in the report a different inference of fact.
It follows that entry must be made.
Decrees affirmed with costs.