Home ROBERT DENTE & another vs. LAWRENCE W. PINK.

5 Mass. App. Ct. 791

March 7, 1977

In this action alleging trespass the plaintiffs obtained a permanent injunction preventing the defendant from using a strip of land owned by the plaintiffs and were awarded damages for injuries to the land. The defendant now claims a right of way upon the land by way of easement, either by grant or prescription; and he points to various deeds purportedly granting him such rights. The master's report, however, made no mention of the defendant's claim of easement nor did it incorporate the deeds referred to by the defendant. Jones v. Gingras, 3 Mass. App. Ct. 393 , 395 (1975). The master's subsidiary findings are silent on the question of the existence of an easement and the defendant failed to move to recommit for findings on that point. Cantor v. Van Noorden Co. Inc. 4 Mass. App. Ct. 819 (1976). Moran v. Desmond, 4 Mass. App. Ct. 828 (1976). There is no showing of evidence before the master upon which he could have made a finding such as that now claimed by the defendant. Moreover, since the pleadings are not included in the record appendix (see Slater v. Burnham Corp. 4 Mass. App. Ct. 791 [1976]; Haddad v. Board of Appeals of Medford, 4 Mass. App. Ct. 843 [1976]), it is not shown that the defendant claimed an easement in his answer. So from all that now appears, the defendant has improperly sought to raise that claim for the first time on appeal. Milton v. Civil Serv. Commn. 365 Mass. 368 , 379 (1974). John B. Deary, Inc. v. Crane, 4 Mass. App. Ct. 719 , 724 (1976).

Judgment affirmed.

Home CHERYL SMITH vs. ARIENS COMPANY.

5 Mass. App. Ct. 791

March 7, 1977

This is an action to recover for personal injuries sustained when the plaintiff was driving a snowmobile allegedly manufactured by the defendant and owned by one Franklin Neville. The judge did not err when he allowed the defendant's motion for a directed verdict. The plaintiff has not sufficiently detailed the chain of purchase or acquisition so as to identify the defendant as the manufacturer of the snowmobile. Shachoy v. Chevrolet Motor Co. 280 Mass. 442 , 444-445 (1932). Murphy v. Campbell Soup Co. 62 F. 2d 564, 565 (1st Cir. 1933). See Jacobs v. Hertz Corp. 358 Mass. 541 , 544 (1970). See also Schmidt v. Archer Iron Works, Inc. 44 Ill. 2d 401, cert. den. 398 U.S. 959 (1970). Contrast

Page 792

Doyle v. Continental Baking Co. 262 Mass. 516 , 518-519 (1928); Nugent v. Popular Mkts. Inc. 353 Mass. 45 , 47-48 (1967). The testimony of the retailer that he sold Franklin Neville an Ariens snowmobile was inconclusive in light of his testimony that he did not know whether the distributor from whom he had purchased the snowmobile was the area distributor for Ariens.

Judgment affirmed.