358 Mass. 823

March 2, 1971

Miller, who had been an overnight guest at a motel of the defendant (Hotels), sought in the Municipal Court of the City of Boston to recover in tort for Hotels' alleged negligence. Miller had left his automobile in Hotels' unattended parking space. Each time after he had used the vehicle he locked it and took away the key. The vehicle was stolen from the parking place. Miller did not establish that any separate charge was made for use of the parking space or that the price of his motel room would have been lower if he had not used the space. The case (removed to the Superior Court) was transferred to the Municipal Court. G. L. c. 231, Section 102C, as amended through St. 1967, c. 778. A finding for Miller was vacated by the Appellate Division and judgment for Hotels was ordered. On the Municipal Court report it could not have been found that Hotels was given complete custody and control of the vehicle. See cases collected in Williston, Contracts (3d ed.) Section 1065, fn. 1. Cf. Sandler v. Commonwealth Station Co. 307 Mass. 470 , 471-474 (key left in ignition at attendant's request). At a complete new trial in the Superior Court upon retransfer the trial judge correctly excluded the district judge's finding which had been vacated by the Appellate Division and thus was no longer in effect. See Lubell v. First Natl. Stores, Inc. 342 Mass. 161 , 164-166; Newgent v. Colonial Contractors & Builders, Inc. 348 Mass. 582 , 584. The Superior Court judge, without any prior requests for instructions by Miller, gave a comprehensive charge (which made no reference to the proceedings in the Municipal Court or the Appellate Division). He reasonably declined to amplify his charge in other respects on somewhat obscure oral requests to do so. See Rule 71 of the Superior Court (1954).

Exceptions overruled.


358 Mass. 823

March 2, 1971.

Charles R. Hesser, pro se. Daniel B. Rakov for the defendant.

The plaintiff appealed from a final decree declaring, inter alia, that the written lease between the parties had expired and that the plaintiff was a tenant at will. There is no doubt that the trial judge was correct. It is equally clear that this appeal is devoid of any merit. The decree is affirmed. Double costs are to be paid by the plaintiff.

So ordered.

Home BURKE WAREHOUSE, INC. vs. ELEANOR THANOS, trustee, & others.

358 Mass. 823

March 2, 1971

This is an appeal by the defendant Thanos from a final decree of the Land Court that the plaintiff (Burke) has a right to use railroad sidetracks

Page 824

on the land of Thanos. A common grantor sold a parcel of land to Burke in July, 1965, and an adjoining parcel to Thanos in November, 1965. The judge's report includes the following findings. The common grantor knew that the right to use the sidetracks was a major inducement to Burke's purchase, knew that such use was necessary for the enjoyment of the parcel purchased by it, and intended that it have the use of the sidetracks. The sidetracks had been used by the grantor and were used by Burke. Thanos had notice of Burke's rights. Those findings were supported by the evidence. Moreover, the deed to Burke, read in the light of the purchase and sale agreement and the circumstances, granted to Burke the right to use the sidetracks. Recorded with the deed to Thanos was a covenant signed by Thanos not to sue the grantor on account of encumbrances created by the deed to Burke. Any conflicting rights of the railroad under the deed to Burke were conveyed to Burke in 1969. Burke had a valid claim to either an implied easement or an easement by express grant. See Cummings v. Franco, 335 Mass. 639 , 642-643; Perodeau v. O'Connor, 336 Mass. 472 , 474-475. There was no error.

Decree affirmed with costs of appeal.