362 Mass. 854

June 2, 1972

This is a petition pursuant to G. L. c. 123A, Section 6, as amended, to adjudicate the defendant a sexually dangerous person and to commit him to the treatment center at the Massachusetts Correctional Institution at Bridgewater. The defendant filed interrogatories pursuant to G. L. c. 231, Section 61, and served the Commonwealth with notices of taking depositions of seven doctors under S. J. C. Rule 3:15, Section 4 (a), 351 Mass. 798 . He also filed a motion for a stenographer and a copy of the transcript of the depositions at public expense. The Commonwealth moved to strike the interrogatories and the notices of depositions, and a judge of the Superior Court denied the motions. He also allowed the motion for a stenographer and a copy of the transcript, entered a stay of proceedings, and reported all of his orders on the motions to this court under G. L. c. 231, Section 111. The judge ruled that the defendant is entitled to the benefit of interrogatories and depositions as a matter of law. We agree. Both the statute governing interrogatories and the rule of court controlling depositions are applicable in civil cases. The rule specifies certain types of cases in which depositions may not be taken as matter of law, but proceedings under G. L. c. 123A, Section 6, are not among the excepted cases. We have characterized G. L. c. 123A, Section 6, proceedings as "manifestly civil." Commonwealth v. Ackers, 343 Mass. 63, 68. Commonwealth v. McGruder, 348 Mass. 712, 716. We therefore conclude that interrogatories and depositions should be available to the parties in those cases. The Commonwealth argues that the allowance of such discovery will create an undue burden upon the Commonwealth in c. 123A cases. There may be validity to the contention that attention to discovery procedures will take the time of psychiatrists which can better be spent in the treatment of patients. Further, the added expenditure of public funds is a serious consideration, particularly in view of the repetitive nature of many c. 123A proceedings. Nevertheless, the language of the statute (G. L. c. 231, Section 61) and the rule of court (3:15) requires the conclusions we have reached. The policy considerations argued by the Commonwealth may be appropriate to offer in support of a legislative amendment, or a change in the rule of court, to limit the uses of discovery in such cases. The interlocutory orders of the judge are affirmed.

So ordered.

Home LUCIEN A. FLUET & another [Note 1] vs. RICHARD C. JULIAN & another. [Note 2]

362 Mass. 854

June 2, 1972

This is a bill in equity wherein the plaintiffs, a husband and wife, seek (a) a declaration that they have a right of way appurtenant to their land over adjoining land owned by the defendants and (b) injunctive relief preventing the defendants from interfering with or obstructing the alleged right of way. The case was referred to a

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master who, after receiving evidence and taking a view, found that the plaintiffs had acquired an easement by prescription over the defendants' land "by virtue of continuous, uninterrupted use . . . for at least a forty-year period, under a claim of right . . . which was open, notorious and adverse to the interests of the . . . [defendants] and their predecessors in ownership . . .." The defendants appeal from an interlocutory decree confirming the master's report and from a final decree ordering the defendants to restore the right of way and permanently enjoining them from interfering with it. The defendants first contend that the master's finding of an easement by prescription is not warranted by the subsidiary facts found by him. The subsidiary facts stated are sufficient to support the ultimate findings. Dodge v. Anna Jaques Hosp. 301 Mass. 431, 435. The defendants also contend that the master erred in striking testimony by one of the plaintiffs that his property could be reached by a route other than that followed by the alleged right of way. This testimony was properly stricken as immaterial to the question whether an easement by prescription existed. It was not open to the defendants to argue that the location of any such easement should be changed. See Davis v. Sikes, 254 Mass. 540, 546-547, and cases cited, and Anderson v. DeVries, 326 Mass. 127, 132-133. There was no error.

Interlocutory decree affirmed.

Final decree affirmed with costs of appeal.


[Note 1] Bernadette M. Fluet.

[Note 2] John F. Julian.