Home ARVID R. ANDERSON & others [Note 1] vs. JOHN W. FILOON, JR., individually and as executor, & others. [Note 2]

357 Mass. 768

April 2, 1970

The defendants appeal from a final decree which declares and defines a right of way appurtenant to described parcels of land standing in the names of the respective plaintiffs over part of a way, called Prospect Avenue in that part of the town of Barnstable known as Hyannisport. The case was decided on a master's report as confirmed after recommittal. The record is voluminous; the exhibits are 138 in number. We have been greatly helped in our understanding of the dispute by the plaintiffs' diagrammatic analysis, based on the master's report, which traces a succession of deeds and estates, commencing in 1872, from a common owner, resulting in five significant divisions of land now owned by the parties to the present litigation. All of the deeds made reference to the "1872 plan," a recorded subdivision plan of the common owner, showing lots and ways, including Prospect Avenue. The master found facts which were mutually consistent and sufficient to support the ruling, implicit in the final decree, that the division deeds created by implication rights of way on Prospect Avenue appurtenant to the land owned by the plaintiffs. We disregard the defendants' assertions of error in the Superior Court both because they are not properly before us and because we are satisfied that they are lacking in substantial merit.

Decree affirmed with costs of appeal.


FOOTNOTES

[Note 1] (Arvid R. Anderson), Elsa L. Powers, Albert E. Anderson, Robert A. Anderson, Maye A. Brogan, Ruth A. Berry, trustees; Charles A. Powers, Jr. and Elsa A. Powers; John R. Berry, Jr. and Ruth A. Berry; Ruth A. Berry; Robert A. Anderson; Albert E. Anderson and Dorothy B. Anderson; Arvid R. Anderson and Marie B. Anderson, Francis D. Brogan and Maye A. Brogan.

[Note 2] Gertrude H. Coleman, Alvin W. Davis, Margaret E. Davis, Fred M. Filoon, Margaret F. Robertson, Fred M. Filoon, executor.

Home BUILDING INSPECTOR OF HOLDEN vs. JOHN O. JOHNSTONE, JR.

357 Mass. 768

April 2, 1970

The building inspector appeals from a final decree permitting the defendant to keep on his premises as he had "for several years" one pony for his own use which the judge found was not commercial. The premises are in a "single-family . . . district." The judge found that the area "is still a rural area," that there was no evidence of nuisance, that the keeping of one pony would not substantially derogate from the spirit and purpose of the by-law or be detrimental to the public good. The section of the by-law relied upon by the plaintiff affords no guide in the circumstances. The holding in Pratt v. Building Inspector of Gloucester, 330 Mass. 344 , 346-347, is not applicable.

Decree affirmed.

Home ALBAN L. RICHARD, administrator, & others vs. R. S. BRINE TRANSPORTATION COMPANY & another.

357 Mass. 768

April 2, 1970

This case is before us on the plaintiffs' exceptions to the trial judge's direction of verdicts for the defendants in an action of tort for negligence. The evidence most favorable to the plaintiffs is as follows: About 3 A.M. on November 2, 1965, the plaintiff Margaret Cleaves was driving the station wagon of her husband, Sidney B. Cleaves, southerly on the three lane wide U.S. Route 1 in Wells, Maine, with her

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mother, Mary Rose Richard, now deceased, her minor son, Warren Cleaves, and others as passengers. It had just stopped snowing and the roadway was slippery. She noticed that a trailer truck following her got so close that she feared for her family and herself. Seeing no room to her right, she went left into the lane provided for traffic traveling northerly. She then saw the defendant's trailer truck coming toward her in its own northbound lane. She turned the wheel as fast as she could, increased speed, went off the road to her left and stopped about two feet off the paved surface. When the defendant operator first saw the station wagon in his lane, he swerved from the northbound lane into the middle lane, applied his brakes and came to a stop in the northbound lane. At some point the rear of his truck skidded off the highway onto the dirt by a couple of feet, and its right side near the rear of the trailer struck the right front of the station wagon. Margaret Cleaves, Warren Cleaves, and the administrator of Mary Rose Richard seek recovery for personal injuries. Sidney B. Cleaves seeks recovery for damage to his station wagon and for medical expenses incurred for his minor son. "By bringing their actions, the plaintiffs assumed the obligation to show that the negligence of the defendant[s] caused their injury. This was an affirmative burden and could not be left to surmise, conjecture or imagination." Bigwood v. Boston & No. St. Ry. 209 Mass. 345 , 348. Rocha v. Alber, 302 Mass. 155 , 157. They have not sustained this burden. There was no error in directing verdicts for the defendants.

Exceptions overruled.