KEY WORDS: 4'-121
DATE: September 9, 1974 a
MEMO TO: Myron Gibbonsz V
FROM: Robert Gibbons
CLIENT: Southwest Florida Water ManagementustrU!si ct- --
RE: SWF Parcel No. 10-200-284
QUESTION PRESENTED: "Would easements for ingress and egress be
extinguished if we get all the land around them?"
There is no case law in Florida explaining the State's position on
this problem. But Florida Jurisprudence does state: "It is the
general rule that regardless of how an easement is created it will
be terminated by merger when the dominant and servient tenements
r come into the ownership of the same person." 11 Fla. Jur. Easements
& Licenses 38 at 264, citing Am. Jur.
C.J.S. has this to say:
When an estate in fee and an easement in the estate are
acquired by the same person, the easement is extinguished,
for the reason that the owner having the jus disponendi the
full and unlimited right and power to make any and every
possible use of the land all subordinate and inferior
derivative rights are necessarily merged and lost in his
higher right. So long as a tract remains in one ownership,
there can be no dominant and servient tenements as between
different portions, and the owner may rearrange the quality
of any possible servitude. Accordingly, an estate is ex-
tinguished when ownership of the dominant and serviant
estates become united in one person, as when the owner of
the dominant estate acquires title to the servient estate,
or the owner of the servient estate acquires title to the
28 C.J.S. Easements 57 at 720.
It would seem that this general rule would be applicable here. I
can't quite tell what the facts are from the material that was given
to me, but I assume from your question that SWFWMD is purchasing all
the land in this area, including the dominant and servient estates.
r' Am I correct?
The only Florida case that touches on this question of~litfuetion of
easements because of merger is Rotolante v. Metropolitan Dade County,
143 So. 2d 212 (3d DCA Fla.), cert. denied, 148 So. 2d 278 (Fla. 1962).
^ In 1908 the Trustees of the Internal Improvement Fund conveyed certain
lands to B, reserving the right to enter upon the lands to construct
canals. Title to the land reverted to the state under the Murphy Act
because of non-payment of taxes. In 1941 the Trustees deeded the land
involved to X who in 1942 conveyed the property to the plaintiffs. No
mention was made in the 1941 or 1942 deeds of any right of the state
to enter upon the land to construct canals. The plaintiffs attempted
to argue that there was a merger when, under the Murphy Act, the land
reverted to the Trustees, the Trustees then being possessed of both
the reservation and the-fee estate. The court found the argument to
be "without merit." It stated: "It is apparent from the face of
the deed that the Trustees did not convey any greater estate than
they received under the Murphy Act. Therefore, there was no merger
of estate." 143 So. 2d at 214. (The court went on to hold for
plaintiffs, however, on the basis of estoppel). The court does not
state that it is refusing to adopt what Florida Jurisprudence refers
to as the "general rule" regarding merger of estates. The court
does refer to what appears on the "face of the deed," but it does
not quote from the deed so that is no help as an explanation.
Possibly the 1941 deed from the Trustees stated something to this
effect: "We hereby convey the estate which reverted to us under
the Murphy Act." Or perhaps this unexpected result is because of
the inherent peculiarity of a Murphy Act transaction. Or perhaps
it can be explained on the ground that this was an easement in
gross, there being no dominant estate.
I am assuming that the easement SWFWMD is concerned with is an
easement appurtenant to some dominant estate, that being the preferred
construction. Under the general rule, therefore, the only question
would be whether SWFWMD has purchased the dominant estate, the
estate intended to be benefited. Without more facts, I can't answer
.A% WA, I r t rms Je,
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L,%9 v. AtdIIOZHIC
ing nctlion for
m was carried
that death of
t I stenIed
I tr 3y per-
d mental suf-
icath might be
r against tlhe
n, for plain-
lford, for de-
in action of
une 30, 1027,.
he was rid-
le. The orig-
*ial, and his
ted as plain-
er the death
tlity of the
d a general
ed by heart
hln 4 for
teft u nn-
s more, but
dent he had
*rk at home.
!e to do any
mal injury is
: to indicate
ted to testi-
'ect that the
a of the In-
ould be has-
d which oc-
i of one of
ly the acci-
t there could
om the acci-
trouble anid condlltion of nrirlrto.sl,'rIriR ruled
lhllt dlninii:g(.s Iight be a xses'ed for tlih mit-
fering proved to have been 'mused by the
nccldlnt in excess of wliat lth suffering of the
intlcstate would have bern If the necldent hlad
not occurred. lie ruled, in .~il sbstnce that
if they found on the medical testimony that
the accident shortened the life of the de-
ceased and also found upon the facts i nd the
reasonable inferences to be drawn therefrom
that he was aware or believed that the con-
dition from which he suffered before the ac-
cident was aggravated, intensified and in-
creased, and that because of the collision
death might be hastened, they could take Into
consideration his apprehensions, fears and
consequent mental suffering so caused. He
also ruled that the burden of proving that
the deceased entertained such apprehension
was on the plaintiff, and if it was not proved
by the greater weight of the evidence the
jury were to disregard the testimony of the
physicians whose evidence was ruled to be
competent only for its bearing on the ques-
tion whether the injuries of the deceased
may have created in his mind the belief and
apprehension above referred to, and that in
no event could they take into consideration
such fear or apprehension of death unless it
was in all the circumstances reasonable on
his part, and such as a reasonable man might
The question attempted to be raised by the
exceptions is whether there was any evidence
which would warrant the jury in inferring
that the plaintiff's intestate entertained the
belief and apprehension that the effect of the
accident upon his previously existing heart
condition might bring about a speedier end-
ing of his life. The defendant makes no con-
tention that mental suffering connected with
and growing out of a physical injury is not
a legitimate clement of damage, but contends
that there was no evidence to justify the in-
.ference that such mental suffering existed in
this case. It does not contend that there
was error in the instructions as abstract
statements of law. See Barney v> Magenis,
241 Mass. 268, 272, 273, 135 N. E. 142.
[1-4] As a part of the foundation for a
finding or inference that the deceased ap-
prehended that his death would be hastened
by the accident, the plaintiff had the right to
introduce the medical testimony to which ex-
ception was taken. The jury also heard the
evidence to which reference has been made
and which gave them some information as to
the unsteadiness of the deceased, his reduced
earning capacity, his nervousness and crying
spells, all of which could have been found to
have resulted from the accident. They must
also have heard evidence not contained in the
record as to the nature of the accident itself
and of the physical injury. A jury may draw
inferences as to pain and suffering from the
physlenil condition oi hle is'r.um lnjulred nnd
from his lconltdulit nI olibrvrd by wlin('sses.
They also had a right to Infer that. the mental
processes of tle ldrceased were such as rea-
minablel men would have under similar Cendi-
tlons. We are unable to say the evidence
introduced at lile trial would not justify the
jury in finding that the deceased apprehended
that the accident would shorten his life or
that such apprehension was not reasonable
on his part.
We find no reversible error in the rulings
on evidence or In the carefully guarded state-
ments of the law to which exception was
LES et al. v. ALIBOZEI et al.
Supreme Judicial Court of Massachusetts.
Berkshire. Nov. 30, 1920.
I. Easements 4-27-Where ownership of dom-
inant and servient estates was united in one
person, no part of either remained servient.
Where ownership of dominant and servient
estates was united in one person, no part of
either remained servient to the other, and ease-
ment over one farm ceased to exist.
2. Easements e=24-One reserving fight of
way for S. farm, when selling H. farm, could
grant reserved right of way when conveying
Where owner of both S. and H. farms, when
'conveying H. farm, made it servient to S. farm
by his reservation of right of way, owner could
grant such reserved right of way when convey-
ing S. farm.
3: Easements =27-One becoming owner of
dominant and servient farms and selling servi-
ent farm without reserving way could not
make valid grant to way when conveying the
One who became owner of both servient and
dominant farms, who later conveyed servient
farm without reserving certain way, could not,
in conveying the other farm, make a valid grant
to such way.
4. Easements =30(2)-Dominant owners'
wrongful act in building roadway at another
place did not terminate their right to old way
created by deed, since It could only be termi-
nated by deed or abandonment.
Dominant owners' unlawful act in building
and using new roadway across farm of servient
owners did not terminate their right to old way
created by deed, since it could be terminated
only by deed or by abandonment.
5. Easements :30(2)-Nonuser alone does
not terminate easement created by deed.
Mere nonuser does not terminate an ease-
ment created by deed.
e=iFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
920 Mass. NOltTII EASTERN IlI'OltTEIlt
6. Easements C30(l)-Plowlng up servient to avoid further 1
estate does not show "abandonment" of way. nuts, If so advised
Plowing up servicut estate is not enough to conform to issue
show "abandonment" of right of way. damages and to man
(PA. Note.-For other definitions, see Words pp
and Phrases, First, Second, and Third Series, Appeal from 8
Abandon; Abandonnent.] County; Burns, Ju
7. Easements 0=30(3)-To show "abandon. Action by Matei
month" of easement there must be evidence of Frank Allbozek a
present Intent to relinquish easement or pur- crees, defendants a
pose Inconsistent with further existence. ally.
S In order to show abandonment of easement, E. D. Getman
there must be evidence of a present Intent to North Adams, for a
relinquish easement or a purpose inconsistent A. Hanlon, of
with its further existence. '. AHanlon, of
8. Easements C=36(3)-Evidence held Insuff. WAIT, J. The fa
clent to show Intent of dominant owners to nation of this apTp
relinquish right of way, except on condition his death, one Rur
which servient owners did not perform. ing farms known
.;- In suit by dominant owners for injunction farms. In 1913 hi
Against interference in use of way acrossrm farm to Horn wit]
of servient owners, evidence held insufficient to wide (which ere
show an intent of plaintiffs to relinquish way, wide (hich here
except on condition which dcf;ndants did not way) along the line
perform, by permitting plaintiffs undisturbed part of the Hill far
use of new way constructed; nor purpose in- Burlingame's heri
*consistent with further existence of old way. to Horn. For ma
way in use from tb
9. Easements =30(l)-Dominant owners con- northeasterly acro
structing new way and claiming right to use South and Hill far
both old and new ways remained legal own out ad H far
ers of old right of way created by deed. old house on the 1i
Dominant owners constructing new roadway ways had been kei
and using it, but claiming right to both old and this way (which h
new ways, remained legal owners of old right of old way). Horn
way across servient owners' farm created by farms until Octobe
deed. the Hill farm to ti
10. Easements @=>58(3)-Owners of servient es- deed, reserved to
tate could limit use of way by barways or un-. signs, a right of wa
locked gates at either end. South farm "the s
Owners of servient estate could limit use way thus reserved
of way by barways or unlocked gated at either was said of the new
end. conveyed the South
II. Injunction l199-Court properly refused theold right of wa
damages to defendants in injunction suit, sumed to grant th
where they did not file cross-bill or request it From May, 1919, m
by answer, plaintiffs used the
Court properly refused damages to defend- farm without objei
ants in injunction suit, where they did not file a the defendants. In
cross-bill and did not request it by their an- they cleared the ne
awer or other appropriate pleading, which rendered it i
12. Equity =-426-Equity rule permitting af. a roadway twenty
firmativo relief to defendant without cross-bill roadway was comp
does not authorize decree therefore unless pendants Joined in
claim is made In answer (Equity Rule 6 its northern bound!
). old way on the 11
Equity Rule 6 (1920), permitting affirma- closed by stretchir
tive relief to defendant without requiring that The defendants w
cross-bill be filed, does not authorize decree plowed up the local
therefore unless claim is made in answer, meadow of the Hill
13. Appeal and error 0l201(6)-Superior the new way until
court may, before entry of decree after re. to use the old way
script, permit defendant to amend answer to defendants claiming
conform to issues actually tried on question but one way across
of damages and to master's findings thereon, way which by agret
It lies within discretion of superior court, for the old way; t
before entry of decree after rescript, in order they had both the (
'--- .,, ,.'.
itgan(aon, to tperml, art..A I
Sto nmend their nlIw,.r ,
ictunlly tried on qulesiior ,'
ster's findings thereon.
Inperlor Court, llerksil,lt
usz Lcs and others agalunt
nd others. Prom th d1i.
appeal. Affirmed condlito.
and f. E. Couch, both of
Boston, for appelleecs.
tcts material to the dolcerl.
al are as follows: P'rl,r t,
lingame owned two adol,,n.
as the "Hill" and "Souti"
s heirs conveyed the Soth,
h a right of way two roli
after will be called the n,,
of one Perrault's land over
m to the highway. In 1I I
s conveyed the 11ll far,,
ny years there had hN.ln .a
e house on the South farm
>ss meadow lands of ithr
ms to the highway near na:
ill farm. Barways or g ate.
tt up, except in winter, on
ereafter will be called then
remained owner of both
r, 1918, when he convey.vIl
he defendants, and, by their
himself, his heirs and na
ly from the highway to the
ame as now in use." Tlhe
was the old way. Nothing
Sway. In May, 1919, Horn
farm to the plaintiffs with
y, and also by this deed as.
em the new right of wny.
until the autumn of 1923 thLe
old way across the lll'
action or interruption from
September, 1923, however,
*w way of trees and brush
impassable, and built there
feet wide. When this new
lete the plaintiffs and di.-
building a wire fence along
ary, and the opening of tlhe
ne of the two farns wan
ag a fence wire across it.
'ith the plaintiffs' assent
tion of the old way on thtI
farm. Tie plaintiffs use,',
May, 1924, and then bagac :
again. Dispute arose; their
.g that the plaintiffs lhadl
;s the Hill farm, the new
?mcnt had been substituted
lie plaintiffs claliuing tlmat
)ld and the new ways--the
ne given by the
ty agreement o.
921, the plaintl
the attorney for
1s along the s5
(the new way) a:
of way describe
lorn to us
Sin said deed *
go or pass but au
described In saa
right of way).
ctilon it attempt
over the Hill f:
the defendants r
able and closed I
ly before the fi
plaintiffs used tt
the old way and
.* The master fo
misslble, that t!
agreed orally tc
across the Hill
the locus of the r
along the locus
that the attorney.
1924, testified tt
had not been Inf
of the parties fo
further found t
right to mainta;
the old way and
tent of $50 by t
down bars and g
finding that the
In ruling that e
in finding that
was made. After
the third but oN
It ordered an In
the report excel
except in allow
joining the def,
ment of the ol2
bars or unlock<
$5 and costs i'
ants appeal fro'
 The rul>
farms was unit,
SParker, 8 Cush
casement over t
S rault line grant
in 1913 ceased
conveyed the 1
- ~ *
= PFor other cases see same topic and KEY-NUMIEIR In all Key-Numbered Digests and Indexes
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M.ir m ... 0
-~~-~--.r ~-~c~- -
r I' ~~
_~ ;r -ri
7 +- -C
permit dl' fend
icir nlwcer to
on qIuetiFlo of
'rom the de-
:)uch, both of
0 the determl-
iwrs: Prior to
d two adjoin-
red the South
ray two rods
tiled the new
it's land over
vay. In 1914
'e Hill farm
t had been a
hands of the
way near an
vays or gate-
n winter, on
)e called the
ner of both
and, by the
eirs nd as-
hvr o the
1 ul The
, 1919, Horn
his deed as-
,ht of way.
. of 1923 the
sss the Hill
3 and brush
en this new
Iffs and de-
Mining of the
L across It.
way on the
n, the new
LES Y. A1,65 N.IAC
one given by their deed from ITorn, Ihe olth(r
by agreement of the defenlld:mat.s. In Mny,
11121, the plailnllifs were it illedi by letter of
the attorney for the defendmlnt not to tres-
pass along tile southerly border of their land
(the new way) and were told "Over the right
of way described in the deed of *
Iorn to us reserved by said Horn
in said deed you have a right to
go or pass but upon no other part of our land
, described In said deed *" (the old
right of way). The letter threatened prose-
cution if attempt were made to pass elsewhere
over the Hill farm. For a short time the
plaintiffs continued to use both ways until
the defendants rendered the new way impass-
able and closed it up. Thereafter until short-
ly before the first hearing In this case the
plaintiffs used the old way but were subjected
to interference, obstruction and objection by
the defendants. They brought this bill for In.
junction against interference in the use of
the old way and for damages.
The master found, if the evidence was ad-
missible, that the defendants and plaintiffs
agreed orally to substitute a right of way
across the Hill farm twenty feet wide along
the locus of the new way for one right of way
along the locus of the old way, and reported
that the attorney who wrote the let er of May,
1924, testified that at the time of writing he
had not been informed of any oral agreement
of the parties for a substitution of ways. He
further found that the defendants had the
right to maintain gates and barways across
the old way and had been damaged to the ex-
tent of $50 by the plaintiffs' acts in tearing
down bars and gates so placed.
The plaintiffs excepted to this report in
finding that the defendants were entitled to
maintain gates and barways on the old way;
in ruling that evidence of an oral agreement
for substitution of ways was admissible; and
in finding that an agreement for substitution
was made. After hearing, the court sustained
the third but overruled the other exceptions.
It ordered an interlocutory decree confirming
the report except so far as thus modified and
except in allowance of damages to the defend-
ants. Further it entered a final decree en-
joining the defendants perpetually from in-
terference with the plaintiffs' peaceful enjoy-
ment of the old way except by maintaining
bars or unlocked gates at either end; and
directing execution to issue for damages in
$50 and costs in a sum stated. The defend-
ants appeal from both decrees.
[1-4] The rules of law applicable are well
established. When the ownership of the two
farms was united in Horn, no part of either
remained servient to the other. See Ritger v.
Parker, 8 Cush. 145, 54 Am. Dec. 744. The
easement over the 11111 farm along the Per.
rault line granted to him with the Hill farm
in 1913 ceased to exist. When, however, he
conveyed the 11111 farm to the defendants he
made it sexrvlnt to the Routh farmn by his res-
ervation of a right of way along the old way
across the imendows. This res'rved rlglit of
way he could and did grant to the plllintiffs
when he conveyed the South farm to them.
It was appurtenent to the South farm and
would have passed with it even if be had not
in terms referred to it in his deed. Dennis v.
Wilson, 107 Mass. 501, and cases cited.
Itarnes v. Lloyd, 112 Mass. 221. But he could
not make a valid grant to them of the new
way along the Perrault line because he did not
then possess it. Only the owners of the 11111
farm could grant a valid right to the new way.
Those owners never did create such a right in
the plaintiffs. The plaintiffs were acting
without right when they built and used the
roadway twenty feet wide along the Perrault
line, unless they did it by license from the
defendants. Their act, even if it was wrong-
ful, did not terminate their right to the old
way. That right was created by deed, and
It could be terminated only by their deed or
by abandonment Dubinsky v. Cama, 261
Mass. 47, 57, 158 N. E. 321; Brookline v.
Whidden, 229 Mass. 485, 118 N. E. 981.
 They never released it by deed. Wheth-
er they abandoned it was a question of fact
Willets v. Langhaar, 212 Mass. 573, 575, 99 N.
*E. 406. For a time they did not use it; but
mere nonuser does not terminate an easement
created by deed. White v. Crawford, 10 Mass.
183, 189; Arnold v. Stevens, 24 Pick. 106, 35
Am. Dec. 305; Barnes v. Lloyd, supra, 112
Mass. 232; Brookline v. Whidden, supra; Wil-
lets v. Langhaar, supra; Arcisz v. Pietrow-
ski (Mass.) 107 N. E. 298.
In Boston & Providence Railroad Corp. v.
Doherty, 154 Mass. 314, at page 317, 28 N. E.
277, 278, it is stated: "It is a well-established
rule of law that an easement may be extin-
guished, renounced, or modified by a parol
license granted by the owner of the dominant
tenement, and executed by the owner of the
servient tenement. Dyer v. Sanford, 9 Mete.
(Mass.) 395 [43 Am. Dec. 399]; Morse v. Cope-
land, 2 Gray, 302; Curtis v. Noonan, 10 Al-
len, 400; Canny v. Andrews, 123 Mass. 155;
King v. Murphy, 140 Mass. 254, 4 N. E. 506.
One cannot acquire an interest In the land of
another by executing a parol license from the
owner to occupy or use it, for such a license is
revocable, but, if the license is to do that upon
the licensee's own land, which prevents the
further enjoyment by the licensor-tf n ease-
ment in the land, such a license, when exe-
cuted, is irrevocable, and the effect of it is to
extinguish the easement. An easement may
be lost by abandonment, and whether there is
an abandonment is ordinarily a question of
Sitention. It the extinguishment of an ease.
meant by the execution by the ownerr of the
servient estate of a license which prevents the
Further enjoyment of tUb,easeaiMt rests on
the ground that the owner of the easement in-
Stentlonally abandoned I&-a td wherethere is
-~bcl ,~- ---Y----* ~C I~--C --_~-I_-_ -~----.~-i~j _~ L_YY.YCUUILI*IUP~~~i
4 .. :P
a complhlte erxtinlulsanhmnt nay well rest
Illt in Iillt lrollil- Ills I lh lho Ine s olcl eu lve.
ly )ireummI iil Ii firvr or*(. owner of llthe
ervilrnt Iiirni.n'it who '. ateii the ileinse,
libcuuse, tbelwevieI Itlee parll: rle, where oine Ints
upon the Ilcinroe (o Itlc oilier, the manifeliif.sl an
apiirenlt intention whicl is acled uipoin nust
control their rihKts., whatever the secret in-
tIentloni of the licensor may be." The court
there held that since, pursuant to a parol
ag .pemnut of the dominant and servient own.
erd for a substitution of a new way for an old
one, the servlent owner had constructed tlhe
new way, and so altered the servlent estate
that the old way could no longer be used as
before, the old way had been extinguished by
the executed license; and, further, that it had
been abandoned, since the change in the old
way was consistent only with an intent of the
dominant owner to abandon his old right.
See also Byrne v. Savole, 225 1Mass. 338, 310,
114 N. E. 307.
16, 1] In the case before us the acts in the
construction of the new way were acts of the
dominant owners under, apparently, a claim
of right; and the acts of the servient owners
in dealing with the old way were not incon-
sistent with the continued existence of the
old way. See Dyer v. Sanford, 9 Mete. 395,
401, 43 Am. Dec. 399. Plowing up the servient
estate is not enough to show abandonment of
the right of way-a temporary suspension of
use is not enough. New England Structural
Co. v. Everett Distilling Co., 180 Mass. 145,
154, 75 N. E. 85; Burnes v. Lloyd, supra;
Pope v. Devereux, 5 Gray, 409. Moreover,
to show abandonment there must be evidence
of a present intent to relinquish the easement
or a purpose inconsistent with its further ex-
istence. Willets v. Langhaar, supra; Parsons
v. New lork, New Haven & Hartford Rail-
road Co., 216 Mass. 269, 272, 103 N. B. 693.
18, 3] There is no finding by the master
that the plaintiffs in beginning to prepare
the new way for use were acting upon a Ii-
cense from the owner of the Hill farm, and
no such ending is called for by the evidence.
If it be assumed that an agreement for sub-
stitution was actually made, the parties did
not continue to act in accord with it. The
new way along the Perrault line was pre-
pared by the plaintiffs and used for a while;
but, in spite of the alleged agreement, the
defendants, by the letter of their attorney, In
May, 1924, forbade its further use, recognized
'the continued existence of the right of way
over the old way and the plaintiffs' right
thereto, and, shortly thereafter, blocked up
the new way. That letter confined the plain-
tiffs to the rights which they held by deed.
It is inconsistent with the existence of ndw
rights created by oral agreement. It was
acted upon by the plaintiffs. The defend-
ants cannot now be permitted to explain it
away as a misunderstanding of the attorney.
In substance the defendants, at least for a
time, denied any right of way across the
.. ,^'*' . .. r' '
.-r .* -' _, i0' .--.
o ..*** .^^ ,- i .' *. *- -.." s.* '
11111 iarin. Tihe pnlllllttiff were vwriti In
Illlinlllii two riKhtlit o wie"l. tlhoih il thel
facre of their stlrd fronti l Iwo lihl li
given li-in. Tlley couilt not rightfully chl:lgni
iotih the old wlay ly deed I dl te th new way by
oral grant, which. according to the nillster'a
relprt, is the cltlin that they made. Nor
could the defendants rightfully maintain that
the right of way along the old way lhad been
terminaltl by agremea, t for a i-stlbtituted
way, and then deny the use of the way so suit.
stitnted. Eventually they removed their ob-
structions from the new way, but too late to
validate the substitution.. The evidence is
not sufficient to show an intent to reUtMquish
except upon a condition which the dfendantis
did not perform-undisturbed use of the new
way; nor a purpose inconsitent with the
further existence of the old way-the plain-
tiffs claimed both rights. The plaintiffs re-
main legal owners of the old right of way.
The judge was right in sustaining the third
objection to the report, and nl the demreay i-
straining interference with that right of way.
(10] The plaintiffs have -ot appealed from
the decree and accept, as iany case they
must have done, the limitation of use of the'
way by barways or unlocked gates at either;
end. See Ball v. Alien, 216 Mass. 400, 472, 10
N. E. 928, Ann. Cas. 1917A, 1248; Blais v.
Clare, 207 Mass. 07, 92 N. E. 1000; Short v.
Devine, 140 Mass. 119, 12, 127, 15 N. E. 148;
Garland v. Furber, 47 N. H. 801; Collins v.
Degler, 74 W. Va. 455, 481, 82 S. E. 205.
111-13) The judge was right also in refus-
ing damages to the defendants. If they de-
sired affirmative relief in this proceeding,
they should have filed a cioss bill, Smith v.
Weeks, 252 Mass. 244, 147 N. 13. 676, or have
requested it by their answer or other ap-
propriate pleading. See Stuart v. Roche
(Mass.) 161 N. E. 624. This they did not do.
The rule which permits affirmative relief to
a defendant without requiring that a cross
bill be filed, Rule 6, Equity (1928), does not au-
thorize a decree therefore unless the claim Is
made in the answer. Nevertheless, It lies
within the discretion of the Superior Court;
before the entry of the decree after rescript,
in order to avoid further litigation, to permit
the defendants, if so advised, to amend their
answer to- conform to' the fises actually
tried on the question of damages and to the
master's findings thereon. Day v. Mills, 213.
Mass. 585, 588, 100 N. E. 1113; Pizer v. Hunt,
253 Mass. 321, 331, 148 N. E. 801; N.: rragan-
sett Amusement Co. v. riverside Park Amuse-
ment Co., 200 Mass. 265, 278, 157 N. E. 532.
If such amendment is allowed, the final de-
cree may be modifed by omitttog the award
of damages to the plaintiff, or by adding an
award of damages in $50 to the defendants:
and as so amended may stand affirmed. It
such amendment and modification are not
made, the decrees as they now stand are af-
...~.. .rr~l~rl(LlrlC i
A '-.,4.- *l
-J 2i.- .--.3 p
-.....i :-T~f ~-~g ~.i,.);
qmitidc for i:
tv.sk4." of hin
%sa his fault I
a ftt hisftag,
Is ett few
rm ruii 11i tr
*A A404"aet I'
qcrine~ of dle
,'I ~was bu.
Henr ;' We p;La;
to nwver Aan
by th6 plaintiff
a toot- It W
The pi*Intiff ir
Vrwre that the
r the occur
how it could b1
his fault and ni
would take cart
41ant denied that
testified that th
needle was the
Other head aft-
I=ore. He also
hb made the llv
used a uew n--
nwn a oinufac
zniahg the inW
j: *ne~or otbe
were wrong in
although onl the
'n two 1had 114.
rlnig ,lly cihian,
tlf way lby
to uie master's
acy made. Nor
ly maintain that
'd way had bteen
r a substitutmel
the way so suli-
moved their ob-
Sbut too late to
L'he evidence is
,nt to relinquish
I the dcfcnda:nts
Suse of the )icw
Istent with the
!e plaintiffs re.
I rig t of way.
inning the third
Sthe decree re-
it rig t of way.
any case they
n of use of the
gates at either
ss. 409, 472, 10K
1248; Blals v.
1009; Short v.
, 15 N. E. 148;
01; Collins v.
S. E. 265.
also in refus-
s. If they de-
3. t .or have
or other ap-
art v. Roche
*ey did not do.
active relief to
: that a cross
3), does not au-
: the claim Is
heless, it lies
ion, to permit
o amend their
;es and to the
v. Mills, 213
Pizer v. Hunt,
57 N. E. 532.
the final de-
ng the award
by adding an
tion are not
stand are af-
.TUILLY v. IANI)
1111 ". EL
TULLY v. MANDELL.
Supreme Judicinl Court of Mansanchusetts.
Suffolk. Nov. 30, IWA1.
1. Physicians and surgeons C>18(9)-Evidence
of dentist's admission that it was his fault
that hypodermic needle broke made negligence
question for jury.
In action for injuries suffered because of
breaking of hypodermic needle used by dentist,
evidence regarding; defendant's admission that it
was his fault that needle broke was evidence
of negligence which required submission of case
2. Trial t=253(9)-Ruling that jury mast find
dentist negligent if he made statement that
breaking of hypodermic needle was attributa-
ble to his fault held erroneous.
In action for injuries suffered by plaintiff be-
cause of breaking of hypodermic needle by den-
tist, ruling in effect that jury would be bound to
find defendant negligent if he made statement
that accident was attributable to his fault hecl
erroneous, since jury should have been permit-
ted to consider all of testimony in passing on
question of defendant's negligence, and his ad-
Smission was but part of that evidence, to be
weighed with the rest.
Exceptions from Superior Court, Suffolk
County; O'Connell, Judge.
Action by Grace 1i. Tully against. srael
Mandell. Verdict for plaintiff, and defendant
brings exceptions. Exceptions sustained.
P. Adams, of Boston, for defendant.
Henry F. Wood and Charles T. Sexton, both
of Boston, for plaintiff.
SANDERSON, J. This is an action of tort
to recover damages from a dentist for per-
sonal injuries, alleged to have been suffered
by the plaintiff because of the breaking of a
hypodermic needle used for the purpose of
anesthesia preparatory to the extraction of
a tooth. It was adniitted that the needle
broke when inserted in the plaintiff's jaw by
The plaintiff introduced testimony tending to
prove that the defendant said immediately
after the occurrence that he did not know
how it could have happened, that it was all
his fault and not to worry about it, that he
would take care of everything. The defend-
ant denied that he made the statement andi
testified that the cause of the breaking of the
needle was the sudden turning by the plaintiff
of her head after he had warned her not to
move. He also described the sterilization of
the instrument, the exact manner in which
he made the injection, and testified that he
used a new needle purchased from a regular
dealer in dental supplies and made by a well
known manufacturer, and that he adopted ir
making the injection the technique he had
4=For other cases see same topic and KEY-NUMBER
S t" L 4-10
I'ILL /, Ma hss. 921__
e judge charged the jury that if the do-
nt warned the plaintiff not to move her 4
when the injection was made, but heo I
nove and the movement caused the needle
cak, she could not recover. lHe refused
re the defendant's requests for rulings to
effect that if the jury found that the
dant told the plaintiff that it was his
the needle broke, that statement is
inclusive against the defendant, that the
en is on the plaintiff to show that the
idant was negligent, and such a state-
is to be considered by them only as iear- -
on the question whether the defendant
In fact negligent. He charged the jury, ;
bstance, that if they should find that the ,
idant stated it was his fault that the.
le broke, the defendant thereby admitted i
igllgence and is liable to the plaintiff
uch damages as the plaintiff establishes
ie satisfaction of the jury. At another
in his charge he instructed them that
plaintiff met the requirements of law as
he burden of proving negligence if she
*ed the jury that the defendant admitted
needle was broken by his fault; that if
defendant made that statement the jury *
d next take up the question of damages
awarded. The exceptions of the defend-
to the refusal of the court to give the
g requested as to the effect of the admis-
and to the rulings given on that subject,
the only questions of law argued by the
2] The admission of the defendant was
ence of negligence which required the
ilsslon of the case to the jury. Zandan
adner, 242 Mass. 503, 505, 136 N. E. 387;
nett v. Roberts, 243 Mass. 233, 236, 137
353. But the judge erred in ruling, in
*t, that the jury would be bound to find
defendant negligent if he made the state-
t that the accident was attributable to
fault Bowditch Mutual Fire Ins. Co. v.
'um, 2 Gray, 550, 552; Conant v. Evans,
Mass. 34, 88 N. E. 438; Hawkes v. Lac-
207 Mass. 424, 433, 83 N. E. 828; Leary
Leith, 256 Mass. 157, 158, 152 N. E. 245. -
verdict in favor of the plaintiff demon-
tes that the jury did not find the plain- :
was guilty of contributory negligence,
they should have been permitted to con-
r all of the testimony in passing upon the
stion of the defendant's negligence. His
mission was but a part of that evidence -
e weighed with the rest, and he was not
eluded by it The jury might have found
hey had considered all the evidence on
t issue that the plaintiff had not main-
ed the burden of proving the defendant
ligent even though he made the admis-
attributed to him.
Exceptions sustained. I '
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