Home GINO A. LEONARDI'S CASE.

349 Mass. 771

October 28, 1965

Decree affirmed. The employee's back and neck were injured on October 4, 1961, when Lumbermens Mutual Casualty Company (Lumbermens) was the workmen's compensation insurer. After a period of treatment, the employee returned to light work until January 3, 1962, when he injured his back again and also his spine. Michigan Mutual Liability Insurance Company (Michigan) was then the insurer. The employee continued to do light work until January 31, 1962, when he was discharged for refusing to do heavier work under a truck when there was a substantial amount of water on the floor. It was for the reviewing board to appraise the employee's testimony and the somewhat conflicting medical testimony. The evidence warranted the conclusion that the injury on January 3, 1962, contributed to all the employee's later disability. Long's Case, 337 Mass. 517 , 520-521. See McConolouge's Case, 336 Mass. 396 , 398-399. Other contentions mentioned at the arguments have not been sufficiently discussed in the briefs to require our comment. Rule 13 of the Rules for the Regulation of Practice before the Full Court, 345 Mass. 787 . Costs and expenses under G. L. c. 152, Section 11A (as amended through St. 1957, c. 693, Section 3), to be paid by Michigan, shall be allowed by the single justice.

Home MARY E. FIORENZA vs. TOWN OF ARLINGTON & another.

349 Mass. 771

October 28, 1965

Exceptions overruled. This is a bill brought in the Land Court to determine the validity and effect of a zoning by-law amendment of the town of Arlington. This amendment would change the zoning from "Residence B" to "Residence C" of about 12,000 square feet of land owned by the defendant, Wilfert. The judge ruled that the amendment was invalid and the defendants excepted. Our review of the record convinces us that this was clearly spot zoning and that the judge's decision was right. Gricus v. Superintendent & Inspector of Bldgs. of Cambridge, 345 Mass. 687 , 690. In view of the foregoing the exclusion of the opinion of the defendant Wilfert as to whether there was a shortage of apartments in Arlington in 1962 did not constitute prejudicial error. The judge's denial of several of the defendant Wilfert's requests for rulings "as being requests for findings of fact or inapplicable to the facts found" likewise was not error.

Home JENNIE BENECCHI vs. ANNA M. KEEGAN & others.

349 Mass. 771

October 29, 1965

Decree affirmed with costs. By deed dated March 3, 1921, granting certain premises the plaintiff was also granted a five foot right of way over the

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grantor's remaining premises along the boundary between the granted and retained premises. The boundary coincided in part with the foundation wall of the dwelling on the granted premises. The defendants' predecessor in title took the remaining land from the same grantor by deed dated October 15, 1923. The latter deed made no reference to the easement granted to the plaintiff. In 1962, the defendants erected a chain link fence which deprives the plaintiff and her tenants of the use of the right of way. The defendants rely mainly upon an alleged purchase and sale agreement executed in 1919 between the grantor and the defendants' predecessor in title which made no reference to the easement The judge properly excluded the agreement. The evidence did not warrant, let alone require, a finding that the plaintiff at the time she took title had notice of the agreement. Dooley v. Merrill, 216 Mass. 500 , 501. See McCarthy v. Lane, 301 Mass. 125 , 128; Tramontozzi v. D'Amicis, 344 Mass. 514 , 517; G. L. c. 183, Section 4. Upon ample evidence which need not be detailed, the judge found that by deed and by prescription the plaintiff was entitled to the relief granted in the decree. The decree was likewise correct in so far as it granted to the defendants the injunctive relief sought by way of counterclaim.