Home COMMONWEALTH vs. MICHAEL E. FORFIA.

5 Mass. App. Ct. 774

February 4, 1977

We pass the absence of any exception to the isolated remark made by the judge during the course of his charge which is still complained of ("There is no doubt that there was a transfer of ownership of those drugs from somebody to somebody else") to say that we see no prejudice resulting to the defendant. As the judge pointed out to the jury, the defendant had been indicted for the unlawful distribution (as opposed to the sale) of a controlled substance, and it is perfectly clear from (a) the defendant's cross-examination, recross-examination and further recross-examination of the undercover agent and (b) the defendant's closing argument to the jury that the only disputed question of material fact was the one of whether it had been the defendant or Benny who had handed the dilaudid pills to the agent following Benny's return from the house where he had purchased the pills. We note the absence of any objection to the judge's further instructions to the jury that it was for them to determine how the agent had obtained the pills which had been introduced in evidence and that "that rests upon his story and the credibility that you give to his story."

Judgment affirmed.

Home FREDERICK ABDULLA & another vs. HAROLD G. NABHAN & others.

5 Mass. App. Ct. 774

February 4, 1977

1. Assuming, as the defendants contend we should, that the building which was built in the early 1940's, acquired by the defendants in 1962, and destroyed by fire in 1971 overhung the locus by approximately five feet and that the plaintiffs knew of that fact when they purchased the locus in 1954, it does not follow that the defendants were entitled as of right to rebuild the overhang after the fire. As the locus was registered land, no easement to maintain the overhang could have arisen by implication or prescription. Dubinsky v. Cama, 261 Mass. 47 , 58 (1927). Goldstein v. Beal, 317 Mass. 750 , 757, 758-759 (1945). See also Peters v. Archambault, 361 Mass. 91 , 93-94 (1972).

Page 775

The cases relied upon by the defendants, Killam v. March, 316 Mass. 646 (1944), and Butler v. Haley Greystone Corp. 347 Mass. 478 (1964), are limited in their application to a prior conveyance of an interest in registered property which, although not appearing in the decree of registration or the certificate of title, has come to the actual notice of a later grantee of the registered property at the time of the conveyance to him. We need not reach the question whether, if there had been an easement before the destruction of the prior building in 1971, it was thereby terminated. See Cotting v. Boston, 201 Mass. 97 , 101-102 (1909). 2. Absent laches (no prejudice to the defendants having been shown) or estoppel (clearly inapplicable in view of the judge's finding that the plaintiffs notified the defendants prior to the construction of the present building that they did not want the overhang to extend over the locus), the overhang was properly ordered removed. Goldstein v. Beal, supra, at 757-758. Peters v. Archambault, supra, at 92-94. 3. The judge did not abuse his discretion in denying the continuance.

Judgment affirmed.