Home CAPE COD HOSPITAL, INC. vs. CAPE COD MEDICAL CENTER, INC.

7 Mass. App. Ct. 873

March 7, 1979

The plaintiff seeks a determination of the height at which it may construct an enclosed bridge (required by the State Department of Public Health as part of the plaintiff's construction program) between two hospital buildings. The bridge would cross over the junction of two private ways in which the defendant has rights of way. The plaintiff owns the fee to that portion of the ways here in issue. We affirm the judgment of the Land Court. Applying the long settled rule that a private way may be built over by the owner of the servient estate so long as the bridge does not interfere with or obstruct the reasonable use of the way by the easement holder (see Healey v. Smith Carriage Co., 265 Mass. 203 , 208-209 [1928]; Sargeant v. Traverse Bldg. Trust, 267 Mass. 490 , 494-495 [1929]), the judge construed the language of the instruments creating the grant of the rights of way ("for all purposes for which ways are used in the Towns of Yarmouth and Barnstable") to determine the scope of the easement in question. The judge ruled that construction at ground level or at an elevated level supported by a center column located on the ways would be an encroachment interfering with the defendant's use, and concluded that the plaintiff could build the bridge over the ways in a manner which would provide a ten-foot vertical clearance for vehicles. The judge's findings that a ten-foot clearance would be sufficient in the circumstances for the type and amount of vehicular traffic to and from the defendant's buildings and that such clearance would not interfere unreasonably with the defendant's use of the way were supported by the evidence presented at trial and were not "clearly erroneous." See Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974); Sanguinetti v. Nantucket Constr. Co., 5 Mass. App. Ct. 227 , 228 (1977). The judge was correct in ruling that the State Department of Public Works' regulations were not controlling on the issue of the minimum allowable clearance over the ways in question since, as the judge stated in her written decision, "the Court must consider the extent of the parties' rights in light of all the factors which bear on the intention of the grantor," including the terms of the grant creating the rights of way and the then existing circumstances. See J.S. Lang Engr. Co. v. Wilkins Potter Press, 246 Mass. 529 , 532 (1923); Sargeant v. Traverse Bldg. Trust, supra at 494.

Judgment affirmed.

Home TRITON REGIONAL DISTRICT SCHOOL COMMITTEE vs. TRITON TEACHERS ASSOCIATION.

7 Mass. App. Ct. 873

March 7, 1979

The Triton Regional District School Committee (committee) appeals from a judgment denying its application to vacate an arbitration award and confirming the award. G. L. c. 150C, Section 11. There was no error. Of the various grounds of G. L. c. 150C, Section 11, upon which the court might have vacated the award, the committee relied on the sole ground that the arbitrator exceeded his powers. G. L. c. 150C, Section 11(a)(3). Compare Trustees of the Boston & Me.

Page 874

Corp. v. Massachusetts Bay Transp. Authy., 363 Mass. 386 , 390 (1973); School Comm. of West Springfield v. Korbut, 373 Mass. 788 , 791 (1977); Boston v. McCarthy, 5 Mass. App. Ct. 890 (1977). That question is always open for judicial review. Boston Teachers Local 66 v. School Comm. of Boston, 370 Mass. 455 , 467 (1976). However, the scope of judicial review is limited and precludes vacating the arbitrator's award unless the arbitrator acted beyond the scope of the reference. Morceau v. Gould-Natl. Batteries, Inc., 344 Mass. 120 , 124 (1962). Greene v. Mari & Sons Flooring Co., 362 Mass. 560 , 562 (1972). The Triton Teachers Association (association) demanded arbitration, and the only demand of concern to us is whether the "Committee has violated Article [ ] XI, Section B" of the agreement by causing twenty-five teachers "involved in the team planning to lose preparation time and perform work beyond the teachers' normal workload without reimbursement." The association sought compensation as a remedy for the time so lost. The arbitrator, in finding there were "extra services" which required "extra pay" and by awarding payment of $500 to each teacher who had participated in the extra planning, addressed the issue submitted to him (contrast Boott Mills v. Board of Conciliation & Arbitration, 311 Mass. 223 , 226 [1942]) and acted within the scope of the reference. The committee's objections, although expressed in terms that the arbitrator exceeded his powers under the agreement, are in fact contentions that he committed a variety of errors of law and fact. Compare School Comm. of West Springfield v. Korbut, supra at 792-793; Cape Cod Gas Co. v. Steelworkers Local 13507, 3 Mass. App. Ct. 258 , 265 (1975). The interpretation of the agreement was a matter for the arbitrator (School Comm. of Danvers v. Tyman, 372 Mass. 106 , 115 [1977]; Wachusett Regional Dist. Sch. Comm. v. Wachusett Regional Teachers Assn., 6 Mass. App. Ct. 851 [1978], and cases cited), and, in the absence of fraud, his decision is binding, even though he may have committed an error of law or fact in reaching his conclusion. Kesslen Bros. v. Board of Conciliation & Arbitration, 339 Mass. 301 , 302 (1959). Morceau v. Gould-Natl. Batteries, Inc., supra at 124. Further, "[i]f violations and grievances are found, the [arbitrator has] broad discretion in fashioning appropriate remedies" (Wachusett Regional Dist. Sch. Comm. v. Wachusett Regional Teachers Assn., supra at 851, and cases cited) and may award a remedy "which falls short of intruding into the school committee's exclusive domain." School Comm. of Danvers v. Tyman, supra at 114. Bradley v. School Comm. of Boston, 373 Mass. 53 , 59 (1977).

Judgment affirmed.