358 Mass. 247 | Mass. | 1970
A Superior Court judge sustained a demurrer to an amended bill in equity. The plaintiff appeals from a final decree dismissing the bill.
Attached to the bill as an exhibit is a plan showing the lots hereafter described. The plaintiff owns parcel P-1 on the north side of School Street, with its street frontage at 13 to 15 School Street, Boston, a short distance west of Washington Street, which runs north and south. The defendant owns parcel D on the west side of Washington Street. Parcel D has its street access at 263 to 265 Washington Street. Parcel P-1 and parcel D adjoin each other at the rear of each parcel. The bill alleges essentially these facts and also the matters set out below.
On February 21, 1956, by deed dated December 28, 1954, Post Publishing Company (Post) conveyed parcel P-1, and the buildings thereon, to one Coppola by a deed
After parcel D had been conveyed to the defendant on March 18, 1958, he demolished the buildings on parcel D and used the land as a parking lot until January, 1968. Then the defendant began to excavate parcel D and parcel P-2. The plaintiff gave notice to the defendant of his claims to parcel P-2. The defendant continued the excavation, demolished the underground structures comprising parcel P-2, and commenced construction of a building which “encroaches on [p]arcel P-1 to the full extent of [p]arcel P-2.”
The plaintiff seeks a mandatory injunction requiring the removal of the allegedly encroaching structure, restoration of the destroyed sub-basement portion of the building at 15 School Street, and general relief. In the demurrer it is asserted that no cause for proceeding in equity has been
1. The plaintiff first argues, in effect, that the deed from Post to Coppola (and the subsequent “substantially identical” deeds in the plaintiff’s chain of title) must be read in the context of the circumstances in which they respectively were delivered. So read, he says that they must be interpreted as conveying not only parcel P-1 but also the subbasements constituting parcel P-2, as a part of the building at nos. 13 to 15 School Street. Doubtless, in cases of ambiguity in descriptions, weight may be given to the circumstances in which a conveyance was made, and to physical characteristics of the property transferred, in determining what the parties intended. See Erickson v. Ames, 264 Mass. 436, 444; Murphy v. Mart Realty of Brockton, Inc. 348 Mass. 675, 680. See also Ovans v. Castrucci, 267 Mass. 600, 606; Restatement: Property, § 242; Am. Law of Property, § 12.91. The principle has been applied with respect to deeds or other transfers of buildings. See Millerick v. Plunkett, 187 Mass. 97, 102-104; Harvey v. Sandwich, 256 Mass. 379, 384-385; Ansin v. Taylor, 262 Mass. 159, 162-163; Labelle v. Lafleche, 289 Mass. 140, 144-145; Tiffany, Real Property (3d ed.) § 990, pp. 90-91. Cf. Bacon v. Kenneson, 290 Mass. 14, 16-17.
The plaintiff’s allegations are indefinite with respect to the relationship between (a) the sub-basements which constitute parcel P-2, and (b) the building (13 to 15 School Street) on parcel P-1. There is no specific allegation in par. 5 of the bill showing whether or how these sub-basements were, or had been, connected or used with the 13 to 15 School Street building. There is (1) no description of the nature or physical characteristics of these sub-basements; (2) no statement concerning their origin and use by Post and its transferees; and (3) no allegation about the knowledge of Post,
Undue reliance cannot be placed upon the allegation that (see par. 5 at point [A]) " [i]ntegral to
On demurrer no intendment will be made in favor of the allegations of a bill, and ambiguities must be construed against the plaintiff. See Leto v. Assessors of Wilmington, 348 Mass. 144, 149. In the light of these principles, we conclude that par. 5 of the bill does not set out in “clear, direct, and unequivocal” fashion facts entitling the plaintiff to relief in equity in the face of a demurrer raising the issue of undue generality in the bill. See North Station Wine Co. Inc. v. United Liquors, Ltd. 323 Mass. 48, 51.
2. The plaintiff also argues that the bill sets forth facts showing that by his deed to parcel P-1, he also acquired in connection with the School Street building an easement by implication over the sub-basements constituting parcel P-2. See Hurley v. Guzzi, 328 Mass. 293, 295-296. The allegations of the bill, particularly par. 5, inadequately state basic facts, as opposed to somewhat general conclusions, sufficient to constitute a case for equitable relief on this theory. Much
3. The demurrer was correctly sustained.
Interlocutory decree affirmed. Final decree affirmed with costs of appeal.
Copies of the deed from Post to Coppola, of the deed from Diab to Weinrebe, and of the deed from the trustees in bankruptcy of Post to Coffman, are set out as exhibits to the amended bill.
The letters in brackets'inserted in the text of par. 5 of the bill, as quoted above, permit convenient reference to the language which immediately follows such letters respectively.
The word “integral” implies the concept of being “essential to completeness: organically joined or linked.” See Webster’s Third New Intl. Dictionary, p. 1173. See also New English Dictionary, Vol. V, pp. 366-367; Century Dictionary, Vol. IV, pp. 3130-3131.