Congregation Beth Israel v. Heller , 231 Mass. 527 ( 1919 )

Rttgg, C. J.

The findings of fact made by the master must be accepted, since the evidence is not reported.

The plaintiff at and before the acts complained of was the owner of the fee of a private way in Boston known as Baldwin Place, together with a tract of land abutting thereon, on which was located its synagogue. It was provided by deed that Baldwin Place is to be forever used as a passageway by "the plaintiff in common with owners and occupants of other land abutting thereon. On each side throughout its length the plaintiff, about ten years ago, constructed a smooth granolithic sidewalk six feet wide. These walks are much used by those who gather at the plaintiff’s synagogue. The defendant is the owner of a tract of land with building thereon, abutting partly on Baldwin Place, and as appurtenant to his estate has by deed “a free and uninterrupted right, use and privilege in” Baldwin Place. For the purpose of providing an entrance to the basement of his building, the defendant made an excavation and constructed a bulkhead in the sidewalk on Baldwin Place. It is to prevent the maintenance of this bulkhead and to compel restoration of Baldwin Place to its former state that this suit is brought.

There is no excuse on this record for the acts of the defendant. He had no title to the fee of Baldwin Place. He had only a bare easement to use it as a passageway. He had no justification whatever for interference with rights of the owner of the fee by excavating or maintaining a bulkhead to be used in connection with his basement. The facts that in Baldwin Place there are coal holes with covers, that four or five houses have flights of two or three wooden steps, all within the property lines, leading to passageways to back yards, and that there are several instances where cellar windows are lighted from gratings in the sidewalk, afford no warrant for the conduct of the defendant. The circumstances under which these were constructed and maintained do not appear. Even if it be assumed in favor of the defendant, but without so deciding, that he has a right to lay water pipes in Baldwin Place, that confers no pretext for the construction or maintenance of a bulkhead. The conduct of the defendant was a pure trespass without an extenuating feature.

It is of no consequence that the acts of the defendant have caused no pecuniary damage to the plaintiff. His conduct is an invasion of its title to real estate, and that is enough to enable it to secure relief by mandatory injunction for removal of his constructions under well recognized principles. The case is within the authority of numerous decisions. Harrington v. McCarthy, 169 Mass. 492. Curtis Manuf. Co. v. Spencer Wire Co. 203 Mass. 448. Kershishian v. Johnson, 210 Mass. 135. Szathmary v. Boston & Albany Railroad, 214 Mass. 42. Zimmerman v. Fihkelstein, 230 Mass. 17.

Decree affirmed with costs.