265 Mass. 390 | Mass. | 1929
The plaintiff seeks to restrain the defendant from collecting and turning surface water upon the land of the plaintiff, from maintaining the eaves of his roof so that the drip, and snow and ice sliding therefrom, will fall upon the
An interlocutory decree was entered confirming the master’s report. Thereafter, on May 9, 1928, an order was entered for a final decree specifying its terms in adequate detail. Seven days later, on May 16, 1928, an appeal from this order was filed by the defendant. Three days after that, on May 19,1928, a final decree was entered conforming to the terms of the order. No appeal has been taken from that decree.
It is contended by the defendant that facts exist which are the equivalent of such appeal. These facts are that the counsel of record for the defendant wrote to the clerk of courts a letter dated May 17,1928, received on the following day, asking for an estimate of the expense of preparing the papers for appeal, “so that I may forward to you this amount.” Reply conveying the requested information was sent on May 21, 1928. The defendant himself, on June 6, 1928, sent to the clerk of courts a check for the stated sum, together with a letter referring to the case by name and saying that the money was sent “to cover expense of printing the record for the appeal brought by me.”
It is assumed in favor of the defendant, but without so deciding, that these letters, although not embodied in a report made by the judge or in the bill of exceptions, may be considered. See “General Rule as to the Records of the Supreme Judicial and the Superior Courts”, §§ 4, 7, 11, printed on pages 60, 61, 64 of 1926 Rules of the Supreme
It is plain that the only appeal taken by the defendant was from the order and not from the final decree. The letter of the defendant to the clerk of courts enclosing a check cannot be treated as an appeal from the final decree. It is neither in form nor in substance an appeal from the final decree. It refers in specific terms to “the appeal brought by me.” The only appeal susceptible of being so described is the appeal filed on May 16 from the order for a final decree. That was the only appeal ever “brought” or filed by the defendant. It could not apply to a final decree entered on a later date. Martin’s Case, 231 Mass. 402, 403.
The plaintiff on June 29, 1928, filed a motion to dismiss the defendant’s appeal from the order for a final decree on the ground that the defendant had failed to enter and prosecute an appeal from the final decree. A decree was entered denying this motion. The plaintiff excepted to the denial of this motion. The question thus is raised whether the case is rightly before us on appeal from the order for final decree which specified the terms of the final decree in adequate terms.
The order for a final decree was not in itself a final disposition of the case. Churchill v. Churchill, 239 Mass. 443, 445. It is the general rule that “Suits in equity are not properly before this court as of right upon any appeal except from a final decree.” Hutchins v. Nickerson, 212 Mass. 118, 120. Forbes v. Tuckerman, 115 Mass. 115, 118, 119. Fuller v. Chapin, 165 Mass. 1. Worcester Board of Health v. Tupper, 210 Mass. 378, 380. Romanausky v. Skutulas, 258 Mass. 190, 192, and cases cited. G. L. c. 214, §§ 19, 26.
That general rule, however, was changed by G. L. c. 231, §§ 96, 144. By § 96 it was provided amongst other matters that “a party aggrieved ... by any order decisive of the case founded upon matter of law apparent on the record in any proceeding, may appeal therefrom to the Supreme Judi
The general equity practice to the effect that equity cases can come before this court as of right only by appeal from a final decree has been restored by St. 1928, c. 306. See Third Report of Judicial Council, pages 64, 65. That act, however, is not applicable to the case at bar because by its express terms it did not become operative until September 1, 1928.
The findings of the master in substance were that the land of the defendant is somewhat higher than that of the plaintiff; that there is a retaining wall on land of the defendant built partly of loose stones, no part of which at its base is on the plaintiff’s land, but the stones of which in some portions are bulged and overhang land of the plaintiff and some of the stones become loose from time to time and fall on the land of the plaintiff; that the defendant maintains the roof or roofs of buildings without eaves troughs, so that rain water and snow collected thereby fall on the top of the wall or a few inches from the plaintiff’s land and run onto it and in some instances fall directly upon his land, and that some rain water or water from melting snow is collected by eaves troughs from other parts of the defendant’s buildings and deposited on the ground a few feet from the plaintiff’s line and spreads in a fan shape, and flows with the natural slope
No error of law is apparent in the assessment of damages. That was a pure question of fact when once it was established that by tortious acts of the defendant water flowed upon premises of the plaintiff and into the cellars of his houses. The circumstance that possibly other causes beside the conduct of the defendant may have contributed in some part to the plaintiff’s injury is not decisive on this record. Parker v. American Woolen Co. 195 Mass. 591, 603, and cases collected. Maynard v. Royal Worcester Corset Co. 200 Mass. 1. Friedman v. Andreson, 257 Mass. 107.
Plaintiff’s exceptions overruled.
Order for final decree affirmed.