Starkie v. Richmond, 155 Mass. 188

Starkie v. Richmond

155 Mass. 188 | Mass. | 1892

Morton, J.

When the defendant began the erection of his building he was notified by the plaintiff Starkie that the foundation was on the passageway. The defendant, relying upon his own deeds, made no change, and proceeded with the building. The court found at the trial that the building encroached upon the way. If Starkie, upon discovering the trespass, had applied seasonably to the court, the defendant might, perhaps, have been compelled to remove his building from the way. Linzee v. Mixer, 101 Mass. 512. Tucker v. Howard, 128 Mass. 361.

He did not do that. He lived there and carried on business there, knew the condition of things, and he and others who had *195occasion to go to and from his premises used the way; but from 1878, when the building was erected, till 1887, when the fence of which he complained was built, he took no steps towards the removal of the block, or to recover damages, or to assert his rights. He was not only passive when he should have been active, but he was active when he should have been passive. During the latter part of the time he had several interviews with the defendant about paving the passageway from Main Street, and the area in the rear of the defendant’s block, and he, with the defendant and others interested, paved the same at their joint expense up to the block, without any objection, so far as appears, that it encroached on the way. With the exception that he was abroad when the block was built, and did not know till some years after that the way was narrowed, though he might readily have ascertained it, what has been said as to Starkie will apply to Green. In addition to this, it is found by the presiding justice in both cases, that the fence, post, and other obstructions which the defendant was directed by the final decrees to remove, have been removed by him, and that the passageway is now in width and form substantially as it was from 1878 to 1887. The presiding justice, in anticipation of these removals, further found that, when they were made, there would exist in the case of Starkie a passageway to and from his premises, substantially and for all practical purposes such as was conveyed to him by the Davis deed in 1872 ; and in the case of Green, that there would be a passageway convenient for teams to pass and repass to and from his premises. This was what the deed of Davis to the predecessors in title of Green, in 1834, called for.

In view of these facts, we think that the refusal of the presiding judge to order the removal of so much of the building as stood upon the way was correct. It is not every case of a permanent obstruction in the use of an easement that entitles the aggrieved party to a restoration of the former situation. Each case depends on its own circumstances. It is for the court, in the exercise of a sound discretion, to determine in such instances whether a mandatory injunction shall issue. It will not be issued when it appears that it will operate inequitably and oppressively, nor when it appears that there has been unreasonable delay by the party seeking it in the enforcement of his rights, *196nor when the injury complained of is not serious or substantial, and may be readily compensated in damages, while to restore things as they were before the acts complained of would subject the other party to great inconvenience and loss. 2 Story Eq. Jur. 959 a. Kerr on Injunctions, (1st Am. ed.) 231. Royal Bank of Liverpool v. Grand Junction Railroad, 125 Mass. 490. Lewis v. Chapman, 3 Beav. 133. Gaskin v. Balls, 13 Ch. D. 324. Aynsley v. Glover, L. R. 18 Eq. 544. It is plain that all these elements exist in this case.

In the next place, the plaintiffs contend, as we understand them, that prior to the defendant’s purchase of the premises they had acquired a right to use the entire area in the rear of the Slater Block as a way. There are several objections to this claim. In the first place, it may be doubted whether, notwithstanding what is stated as to the extent of the use, the presiding justice, in his finding that the defendant had a right to occupy the rear lot, has not settled the fact as to the right of the plaintiffs to use it for a way against them. Again, it may also be doubted whether, so far as that way depends on prescription, the plaintiffs could prescribe for such a way as they claim. A way imports a right of passing in a particular line, and not everywhere over the premises over which it is claimed. Jones v. Percival, 5 Pick. 485. Nichols v. Luce, 24 Pick. 102, 104. Chase v. Perry, 132 Mass. 582. Washburn on Easements, (2d ed.) 93, 160. Again, the character of the use was such, in the present instance, that it may well be presumed to have been by the sufferance of the defendant and his predecessors in title. Still further, the deed under which the plaintiff Green and his grantors acquired title from Davis, the former owner of the estate, in effect provided that the way might be carried farther east as changes in the Slater Block property required ; and even if there had been a right of way from the southeast corner of the Slater Block across the rear lot, the parties in interest in 1878 substituted, as they clearly had the right to do, the present way for it, and used the substituted way without objection till the erection of the fence in 1887. See Pope v. Devereux, 5 Gray, 409. We think, therefore, if the statement “ the defendant had the right to occupy his rear lot with a permanent building” be regarded as a ruling of law based on the facts stated and found in the report, that it was clearly right.

*197Lastly, the plaintiffs insist that the presiding justice had no power to appoint the commission to mark out on the surface of the earth the location and width of a convenient passageway for teams, or to use its report in aid of the final decrees. It is to be observed that the objection was not taken till after the entry of the final decrees, from which the plaintiffs appealed; and, though the cases come here by the report of the presiding justice, that fact does not enlarge the right of the plaintiffs to object to what was done. Denny v. Conway Ins. Co. 13 Gray, 492. Kennedy v. Owen, 131 Mass. 431. Butterworth v. Western Assurance Co. 132 Mass. 489. Hodgkins v. Price, 137 Mass. 13. The cases must stand, we think, very much on the ground that they would have stood on if there had been an application to the Superior Court to vacate the decrees because of error, as matter of law, upon the stated facts on the part of the justice who entered them. It is manifest that the appeal of the plaintiffs would only bring to this court the question whether the decrees were warranted, by the frame of the bills, and about that there can be no question. It appears that, after the hearing, the presiding justice called the parties together and informed them that he had determined that the defendant had encroached on the north side of the way by his building and fence, and that if they could not come to an agreement he should employ a surveyor, and mark out on the surface of the earth the limits of the way, so as to establish it for all time. The plaintiffs did not except or object to this. We think they must be held to have acquiesced in the course which the justice proposed to pursue in case they and the defendant could not agree. Later, the parties informed the justice that they were unable to agree, and he thereupon appointed the commission in question. No hearing was given by him on the question of its constitution or appointment. But the parties were informed of the appointments after they were made, and the plaintiffs did not object or except to what had been done. Green was told by the court that the commissioners would meet at the way at a certain hour to mark out the way, and he was there at the time named and made no objection. Owing to the sickness of one of them, only two of the commissioners were present. Starkie lived on the ground, and a son of his, though without authority to represent him, was present at this same meeting of the commis*198sioners. The plaintiffs were not notified, and knew nothing about the subsequent doings or meetings of the commissioners or their report till after it was filed and the decrees were entered. It does not appear that they took any steps to learn what the report was till after the entry of the decrees, or that they made any efforts or expressed any desire to be heard by the commissioners, or to be present at their meetings, with the exception of what has been stated as to the first one. They do not now impugn the skill or honesty of the commissioners, or point out any mistake in their report, or error in the decrees traceable to it. They did not express any wish or make any effort to be heard in reference to the final decrees, and the court was under no obligation to confer with or notify them about the decrees. .If there was at any time any ground on which they could have objected to the appointment and doings of the commission, we think their conduct has been such that they must be deemed to have waived it, or to be estopped to insist upon it now. Mount Hope Iron Co. v. Dearden, 140 Mass. 430. Fowler v. Parsons, 143 Mass. 401. See also cases cited supra. The result is, Decrees affirmed.