Home THOMAS A. SULLIVAN & others vs. MARY A. MORAN, administratrix.

340 Mass. 782

December 9, 1959

Order allowing motion to dismiss affirmed. This is a petition filed December 8, 1953, by three children and three grandchildren of Mary Sullivan to revoke a decree of October 2, 1933, allowing the first and final account of the administratrix of her estate to which all next of kin and the guardian of grandchildren assented. It is alleged that the assent of the petitioners was given under a "misapprehension." In a report of material facts the judge stated the history of the case and noted that no allegation was made of fraud, undue influence, or manifest error. A motion to dismiss the petition, which we treat as a plea, was allowed "especially on the grounds of obvious laches." The petitioners appealed. There was no error. See Reynolds v. Remick, 333 Mass. 1 , 9-10; Lindsey v. Fabens, 189 Mass. 329 , 331; Thompson v. De Visscr, 219 Mass. 40 , 43.

Home EMMA S. GLOSS vs. WOLF GRABOWIECKI & others.

340 Mass. 782

December 9, 1959

Final decree is to be modified by striking out paragraphs 1, 2, and 3 and by substituting new paragraphs which are to provide that the plaintiff's easement extends only over the strip three feet three inches in width beyond the plaintiff's property. As so modified the final decree is affirmed. This is a bill in equity to enjoin the defendants from interfering with a strip of land three feet three inches in width over which the plaintiff claims to have acquired an easement by prescription. This strip adjoins the property of the plaintiff and together with a strip four feet wide, the ownership of which is admittedly in the plaintiff by deed, forms a driveway seven feet three inches in width and has been used by the plaintiff as such since 1926. From a reading of the subsidiary facts found by the master it is apparent that he found that the plaintiff had acquired a prescriptive right to use the strip three feet three inches wide adjoining the plaintiff's land, the record title of which was in the defendants Grabowiecki. A decree was entered granting the relief prayed for and the defendants appealed. The defendants do not challenge the decree on the merits but seek only to have it clarified. We are of opinion that the decree is in need of clarification. As paragraphs numbered 1, 2, and 3 of the decree now read, there is a possibility that it might be construed as giving the plaintiff an easement over the land of the defendants Grabowiecki seven feet three inches in width. This is not in accordance with the subsidiary facts found by the master and the plaintiff does not assert any such right. The final decree therefore should be modified by striking out paragraphs 1, 2, and 3 and by substituting new paragraphs which are to provide that the plaintiff's easement extends only over the strip three feet three inches in width beyond the plaintiff's property. As so modified the final decree is affirmed.

Home SARAH RODOFSKY vs. STOP & SHOP, INC.

340 Mass. 782

December 30, 1959

Exceptions overruled. The plaintiff's declaration in this action of tort alleged that on December 22, 1955, she was on the defendant's premises as a business invitee; that a "defective condition" existed on the premises which allowed "water to collect" and "run into channels toward a drain"; that the water "froze by operation of natural causes and created ridges of unnatural ice by automobiles travelling on the premises"; and that "by reason of said artificial accumulation of snow and ice [the plaintiff] was caused to fall." The evidence most favorable to the plaintiff showed that as the plaintiff crossed

Page 783

the defendant's parking lot around 4 P.M. she slipped and fell; that the place where she slipped was near a sidewalk "on the side of the [defendant's] store with a roof over it"; that there were "ridges, deep marks where the cars go in and out, and it was all frozen and covered with snow"; that the "ridges were of . . . ice about two inches high"; and that it was "all ridges where the cars had driven out in front." The weather that day was below freezing, the maximum temperature being 17 degrees; it had started to snow at noon and continued until about 4 P.M. At the close of the evidence the defendant presented a motion for a directed verdict. One of the grounds set forth in the motion was that there was a variance between the declaration and the evidence. The motion was denied and the case was submitted to the jury who returned a verdict for the plaintiff, which was recorded under leave reserved. Thereafter, on motion of the defendant the judge entered a verdict for the defendant subject to the plaintiff's exception. There was no error. There was a fatal variance between the declaration and the proof. There was no evidence that the icy condition on which the plaintiff fell was due to any unnatural accumulation of water as alleged in the declaration. The case in this respect is on all fours with Glynn v. Blomerth, 312 Mass. 299 , and is governed by it. The denial of the plaintiff's motion to amend reveals no error of law.