From Casetext: Smarter Legal Research

Brink v. Summers

Supreme Judicial Court of Massachusetts
Jun 7, 1967
227 N.E.2d 476 (Mass. 1967)

Opinion

June 7, 1967.

James D. St. Clair for the defendant.

John H. Fletcher Calver for the plaintiff.


The plaintiff brought this bill to compel the removal of a portion of the defendant's residence, which extends over a boundary line onto vacant land owned by the plaintiff and which was constructed following a mistake made by a surveyor employed by the defendant. The bill was taken pro confesso against a former defendant bank which holds a mortgage on the defendant's property. A Land Court plan delineating the boundaries of the adjacent lots of the parties had been of record for many years prior to the employment of the surveyor. The judge found that the defendant's dwelling, which had a width at that point of twenty feet, extended onto the plaintiff's land for seventeen and a half feet, and found also that the "building ordinances of the Town of Falmouth [where the building was located] require a set-back of ten feet from property lines." A final decree ordered the defendant to "remove . . . her building at least ten feet from . . . [the plaintiff's] boundary line." There was no error. Notwithstanding the innocent mistake and the resultant expense to the defendant, on these facts the plaintiff is entitled to a mandatory injunction requiring the removal of the building unlawfully placed upon her land without regard to the amount of her damage, the cost of removal, or the defendant's good faith. Ferrone v. Rossi, 311 Mass. 591, 593. Blood v. Cohen, 330 Mass. 385, 387. Sheppard Envelope Co. v. Arcade Malleable Iron Co. 335 Mass. 180, 188-189. A review of the evidence demonstrates, as the judge found, no laches on the part of the plaintiff.

Decree affirmed.


Summaries of

Brink v. Summers

Supreme Judicial Court of Massachusetts
Jun 7, 1967
227 N.E.2d 476 (Mass. 1967)
Case details for

Brink v. Summers

Case Details

Full title:FRANCES W. BRINK vs. LENORA C. SUMMERS

Court:Supreme Judicial Court of Massachusetts

Date published: Jun 7, 1967

Citations

227 N.E.2d 476 (Mass. 1967)
352 Mass. 786

Citing Cases

Peters v. Archambault

Ottavia v. Savarese, 338 Mass. 330, 336-337. Brink v. Summers, 352 Mass. 786. In rare cases, referred to in…

Mastandrea v. Baressi

The relocation of the front and rear entrance steps to the defendants' house appears to have been occasioned…