Zimmerman v. Finkelstein

| Mass. | Apr 8, 1918

Crosby, J.

The plaintiffs and the defendant are owners of adjoining real estate on North Russell Street in the city of Boston. There is a passageway between the buildings owned respectively by the parties, and this bill is brought to restrain the defendant from maintaining fire escapes on the passageway. The case was referred to a master, who found that the fee in the passageway was owned by the plaintiffs and that the maintenance of the fire escapes by the defendant was without right. He further found that certain easements in the passageway were owned by others as appurtenant to a parcel of real estate at the westerly end of the passageway.

The demurrer to the bill was overruled, and the defendant appealed. An interlocutory decree confirming the master’s report was entered, and also a final decree ordering the defendant to remove the fire escapes from her building, from which decree the defendant has appealed.

On this record, the only question of law argued by the defendant is whether the demurrer should have been sustained because of the non-joinder of other parties having easements in the passageway. All other questions are deemed to have been waived by the defendant, but in reaching this conclusion it may be stated that the plaintiffs are entitled to the relief which they seek on the facts as found by the master upon the evidence, all of which is not reported.

“Generally, when several persons have a common interest in the subject matter of the bill, and a right to ask for the same remedy against the defendant, they may properly be joined as plaintiffs.” Cadigan v. Brown, 120 Mass. 493" court="Mass." date_filed="1876-09-07" href="https://app.midpage.ai/document/cadigan-v-brown-6418579?utm_source=webapp" opinion_id="6418579">120 Mass. 493, 494. Such joinder of parties in many cases will prevent a multiplicity of suits and enable a court of equity to administer justice to all the interested parties; but in the case at bar the plaintiffs were not required to join the other persons as parties to the bill as they were interested only as owners of an easement in the passageway, and it does not appear upon the record that their rights have been so interfered with as to be entitled to equitable relief, while on the other hand the plaintiffs as owners of the fee in the passageway are entitled to a decree for the removal of the fire escapes if they are maintained unlawfully, as the master has found. Cadigan v. Brown, supra. Parker v. Nightingale, 6 Allen, 341. Ballou v. Hopkinton, 4 Gray, 324.

If, as the plaintiffs allege and the master has found, the fire escapes are maintained upon their land unlawfully and they are entitled to their removal, there was no occasion for making others having easements in the way parties to the suit, as it is apparent that complete justice may be done between all parties interested, in one suit. The cases cited and relied on by the defendant are not contrary to the conclusion reached, but are in accord with it. The demurrer was rightly overruled, and the entry must be

Decree affirmed with costs.