Home STEPHEN A. MAHONEY vs. WILLIAM J. HEEBNER & another.

343 Mass. 770

November 1, 1961

Final decree affirmed with costs of appeal. The master's conclusion that the plaintiff and his predecessors in title, by continuous use for more than twenty years, have acquired a right by prescription to use a driveway which passes over the defendants' land was consistent with and justified by his other findings. Seasonal absence of the plaintiff and his predecessors from their summer residence did not require a finding that the adverse use was not continuous. Kershaw v. Zecchini, 342 Mass. 318 , 320-321, and cases cited. Restatement: Property, Section 459 (1), comment b. Anno. 24 A. L. R. 2d 632.

Home JOSEPH L. PORESKY, special administrator, vs. HAZEL SAMPSON.

343 Mass. 770

November 2, 1961

Decree affirmed. The judge of the Land Court, on all the evidence, which is not before us, found that the mortgage of real estate held by the defendant was given for good and valid consideration; that nothing has been paid thereon; and that the (unacknowledged) purported discharge was never legally delivered. The judge ruled that the mortgage is valid and outstanding. There are no inconsistent findings. We disregard the extensive statements of testimony included in the "Findings, Rulings and Order for Decree." Skerrett v. Hartnett, 322 Mass. 452 , 454. Bacon v. Kenneson, 290 Mass. 14 , 15. Band v. Davis, 325 Mass. 18 , 21-22. We note, however, that the statement includes testimony, which, although contradicted, was found credible by the judge and supports his findings.

Home FRANCES P. DOMAIN vs. FRIENDLY ICE CREAM CORP.

343 Mass. 770

November 2, 1961

Exceptions overruled. The plaintiff's evidence went no further than to show that she fell on a "highly polished" floor; that she slipped and fell "when her heel hit something slippery" which she thought was wax as "she had hit wax before, and it seemed to her that it was wax because it was so fast." There was no evidence of the presence at the place of the fall of any accumulation of any substance chargeable to the defendant's negligence. The testimony of a heavy black streak on the sleeve and back of the plaintiff's coat which "she would say . . . was grease" was not such evidence. Rosenthal v. Central Garage of Lynn, Inc. 279 Mass. 574 , 576. Fitzgerald v. Cain's Lobster House, Inc. 334 Mass. 702 . Gerstenzang v. Kennedy & Co. Inc. 340 Mass. 174 . Devery v. Stop & Shop, Inc. 342 Mass. 777 .

Page 771

The maintenance of a polished floor is not evidence of negligence. Kay v. Audet, 306 Mass. 337 , 341. Gerstenzang case, supra. Compare Ventromile v. Malden Elec. Co. 317 Mass. 132 ; Young v. Food Fair, Inc. 337 Mass. 323 .