Water Action. that it was intended to create a right enThe declaration in this action is to recovforceable by action only in the courts of Arizona. er a debt for money expended in this ComThe inspection afforded to the monwealth for the defendant's proportion of plaintiff by paragraph 4051 manifestly can expense for pumping water from the defend-be enjoined with compelling power only by a ant's mine in Arizona. The action is found- court in Arizona. That provision can have ed upon paragraphs 4047, 4048, of the Re- no power outside its territory. vised Statutes of the state of Arizona of It is manifest that title to the several mines is involved in the settlement of the issues raised in this action. The reasons already discussed in the decision of the ore action are to a large extent equally applica 1913, which are printed in the margin. In In this case, also, the demurrer was sustained, the answer in abatement adjudged sufficient and the action dismissed. These sections of the statutes upon which the plaintiff's action is grounded deal with matters in their nature essentially local to Arizona. The statute itself bears strong implication 1 "Par. 4017. Whenever adjacent or contiguous mines, occupied and worked upon the same or upon separate lodes have a common ingress of water or by reason of subterranean communication of water have a common drainage, it shall be the duty of the owners, lessees or occupants of said mines so related, to provide for their proportionate share of such drainage, or to prevent the water in such mine from flowing in or upon neighboring mines thereby imposing upon them an unjust burden. The determination of the common ingress of water and subterranean water communications well may necessitate ascertainment with minute exactness of physical features of land both on and underneath the face of the earth and may require examination of surface and subterranean water courses and channels and other geological aspects of surrounding country as well as of the properties of the parties directly concerned in the litigation. These are questions naturally to be determined by the court of Arizona. There is a strong analogy between a case like the present and actions for damage by flowage or diversion of water which commonly have been counted local either to the jurisdiction where the damage is done or that where the obstruction is erected. Barden v. "Par. 4048. If any owners, lessees or occupants of Crocker, 10 Pick. 383; Mannville Co. v. Worany such mine shall fail or neglect to provide forcester, 138 Mass. 89, 52 Am. Rep. 261. Morethe drainage thereof, and by reason of such failure or neglect, the owners, lessees or occupants of any adjacent or contiguous mine are compelled to pump or drain or otherwise provide for the water flowing in from such first-mentioned mine, then, and in such event the owner, lessees or occupants of the mine so in default, shall pay, respectively, to those performing the work of drainage their proportion of the actual and necessary cost and expense of pumping, draining or otherwise providing for said water, and if they fail or refuse to make such payment, the same may be recovered by an action in any court of competent jurisdiction." "Par. 4051. When an action is commenced, as provided herein, to recover the costs and expenses for draining a lode or mine, it shall be lawful for the plaintiff to apply to the court for an order to inspect and examine the lodes or mines claimed to have been drained by the plaintiff, and upon affidavit that such inspection or examination is necessary for a proper preparation of the case for trial the court shall grant an order for the underground inspection and examination of the lode or mine described in the petition. Such order shall designate the number of persons, not exceeding three, besides the plaintiff or his representatives, who may examine and inspect such lode and mines, and take measurements for the purpose of showing the amount of water taken from the lode or mine, or the number of fathoms of ground mined and worked out of the lode or mines claimed to have been drained, the cost of such examination and inspection to be borne by the party applying therefor. The court shall have power to cause the removal of any rock, débris, or any other obstacle in any lode or vein when such removal is shown to be necessary to a just determination of the question involved; provided, that no such order for inspection and examination shall be made except upon notice of at least three days, nor unless it appears that the plaintiff has been refused the privilege of making the examination by the defendant, his or their agent." over, there are present here in addition factors enumerated in National Telephone Mfg. Co. v. Du Bois, 165 Mass. 117, 42 N. E. 510, 30 L. R. A. 628, 52 Am. St. Rep. 503, and affirmed in the earlier suit between these parties, 233 Mass. 522, 124 N. E. 281, as independent reasons for declining to assume equity jurisdiction of a controversy between nonresidents, namely, a doubt whether complete justice between the parties can be done here, the imposition upon the defendant of large expense and great difficulties in conducting the investigation in our courts, most of which would be avoided by bringing the action in the forum where the cause arose. [9] This conclusion is not at variance with cases like Stone v. Old Colony St. Ry., 212 Mass. 459, 464, 465, 99 N. E. 218, Nashua Rivver Paper Co. v. Hammermill Paper Co., 223 Mass. S, 111 N. E. 678, L. R. A. 1916D, 691, and Hanlon v. Frederick Leyland & Co., Ltd., 223 Mass. 438, 111 N. E. 907, L. R. A. 1917A, 34, where the disposition of this court to assume jurisdiction of causes of action whereever practicable has been plainly manifested. It seems to us that cases like Atchison, Topeka & Santa Fé Ry. Co. v. Sowers, 213 U. S. 55, 70, 29 Sup. Ct. 397, 53 L. Ed. 695, and Tennessee Coal, Iron & Railroad Co. v. George, 233 U. S. 354, 34 Sup. Ct. 587, 58 L. Ed. 997, L. R. A. 1916D, 685, which deal with actions confessedly transitory, are not pertinent to the present issue. These con (128 N.E.) siderations lead to the conclusion that the band continued to live in Providence for six statute upon which this action is founded months after the desertion, and in 1916 came does not authorize a suit in this common-to Waltham, in this commonwealth, where wealth and that the decision of the superior he has since resided. court was right in adjudging the answer in abatement sufficient and in dismissing the action. [1, 2] The judge found that when the libelant and his wife went to Lowell, in March, he "thought that he might settle in Lowell if he liked the conditions, but that he never formed a definite intention to remain there"; that his going to Lowell did not work a change in his domicile, and it continued to be in Providence from the date of the marriage until he removed to Waltham. The libelant had not lived in this commonwealth for "five years last preceding the filing of the libel" (R. L. c. 152, § 5), and the court had no jurisdiction to grant the libel if the libelant and libelee had never lived together as husband and wife in this commonwealth. R. L. c. 152, § 4. The provision in the statute that band and wife in this commonwealth in order the parties must have lived together as husthat a decree of divorce may be granted means that they had a domicile here. Ross v. Ross, 103 Mass. 575; Weston v. Weston, 143 Mass. 274, 9 N. E. 557. When the parties went to Lowell in March, 1908, the husband did not intend to make his permanent home in that city; his stay depended upon circumstances. If conditions were favorable he might continue to live there; but he had no definite and fixed intention to remain and become a resident of that city and he did not acquire a domicile in this commonwealth. "A person cannot be said to lose his domicile or residence by leaving it with an uncertain, indefinite, half-formed purpose to take up his residence elsewhere. * Until his purpose Suit for divorce by George R. Field against to remain has become fixed, he could not be said Ida F. Field. On report to the Supreme to have abandoned his former residence." WorJudicial Court, after ruling by the superiorcester v. Wilbraham, 13 Gray, 586, 590; Olivcourt that it lacked jurisdiction. Libel dis- ieri v. Atkinson, 168 Mass. 28, 46 N. E. 422; missed. White v. Stowell, 229 Mass. 594, 119 N. E. 121. John E. Crowley, of Boston, for libelant. Winans v. Winans, 205 Mass. 388, 91 N. E. 394, 28 L. R. A. (N. S.) 992, on which the libelant relies, is clearly distinguishable. In that case, when the libelee came to Boston with his wife he intended to reside permanently in this commonwealth. CARROLL, J. The parties were married February 1, 1908, in Fall River, where the wife was living; the husband at that time residing in Providence, R. I., and engaged there in business. After a wedding journey to Lowell they lived in Providence for about three weeks. In March, 1908, they went to Lowell and remained there five weeks, during which time the libelant "worked in [a] restaurant." They then returned to Providence, where they lived until November, 1915, when the libelee deserted the libelant. The hus- Libel dismissed. The ruling in the case at bar that the parties had never lived together in this commonwealth as husband and wife within the meaning of R. L. c. 152, § 4, and that the court had no jurisdiction to entertain the libel, on the facts found was fully warranted, if not required. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (236 Mass. 176) lower or southerly end; upon this land 10 NASH et al. v. ELIOT STREET GARAGE brick dwelling houses stood, which abutted CO. (Supreme Judicial Court of Massachusetts. Suffolk. June 23, 1920.) on the way, 5 on each side. The petitioners, who are successors in title to Dixwell and others, own a parcel of land which abuts on Boylston Place at its entrance from Boylston street and includes part of the fee in the way. By the indenture Dixwell and others, the grantors, remised, released and forever quit 1. Easements 3(2) Determination of 2. Easements 3(2)—Grant of way personal Indenture creating right of way held to have limited the way to the occupants of certain houses to be erected, coming to an end when the houses were demolished, and not being appurtenant to land on which they stood. "and his heirs and assigns, but as appurtenant, however, to that portion of his estate on Eliot street in Boston which lies north of a line which is 40 feet distant northerly from and parallel to the north line of said street, a free right of way and passage in common with them and their heirs and assigns over Boylston Place, so called, to and from that portion of his said estate which is above specified to Boylston street and carriage way, and the sidewalks in said place to be used as such and in no other manner and as the same now exist and to be continued to uniform width by said Brackett. But this conveyance is made upon the following conditions." Then follow three conditions. The first provides in part that Boylston Place is to be extended to a line 40 feet distant from Eliot street at the sole cost of Brackett, but is never to be continued through to Eliot street; that Brackett will build a brick building opposite the end of the way, fronting on Eliot street and not more than 40 feet in Appeal from Land Court, Suffolk County; depth, without any opening onto or passageC. T. Davis, Judge. Petition to amend certificate of title by Francis P. Nash and another, trustees, against the Eliot Street Garage Company. From a decision allowing the amendment, defendant appeals. Affirmed. Roland Gray, Albert Boyden, and William ways leading therefrom into Boylston Place; "the object being to prevent as far as possible a street or common passageway from being ever made over Boylston Place to connect Boylston street with Eliot street, or any other street or place." The second condition provides that Brackett shall lay a drain through Boylston Place and across his land to Eliot street for the use of the estates of the other abutters on the place. The third condition is as follows: Rackemann & Brewster, of Boston (Chas. "That said Brackett or his representatives S. Rackemann and Joseph Sargent, both of shall also erect not more than ten brick dwellBoston, of counsel), for Tavern Club, amicusing houses fronting on said place as continued, curiæ. five on each side as of good style and of such class as shall accommodate occupants like those now occupying said place; that no materials, for building the same, shall be carried such houses are erected on one side of the place as continued, and fit for occupancy, the brick wall at the foot of the present place is not to be removed; and as all the houses may not be immediately erected the said Brackett or his representatives shall before every vacant lot The instrument creating the right of way is erect and maintain a substantial fence, so as in the form of an indenture, dated September effectually to exclude all passage to or from the same over Boylston Place, so that none but 30, 1853, between Dixwell and others and the occupants of the new buildings, so to be Brackett. Boylston Place is a private way erected on said place shall ever be able to avail running southerly from Boylston street, be-themselves of any of the privileges hereby contween, and in the same general direction | veyed." as, Tremont and Carver streets. spondent, who is the successor in title to CROSBY, J. This is a petition to the land court under R. L. c. 128, § 107, to amend the certificate of title of the petitioners by strik-over the place as it now exists; and that until ing therefrom those parts that subject their land to a right of way over Boylston Place, so called, in Boston, and which way is alleged by the respondent to be appurtenant to its land. The re The ten brick dwelling houses were erected Brackett, is now the owner of the land at its by Brackett shortly after 1853, and recently For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (128 N.E.) were torn down voluntarily by the respond- providing that the occupants of the houses to ent. be built should be of the same class as those [1] The question is: What is the meaning living there at that time. While in the grantof the language used in the indenture creat- ing clause of the indenture the right of way. ing the right of way? Was it a right of way was conveyed in fee and appurtenant to the for the benefit solely of the occupants of the land, we are of opinion that by the last clause dwelling houses to be erected, and which before the testimonium clause it was excame to an end when the houses were demol-pressly and intentionally limited to the occuished? Or was it in effect an absolute grant pants of the ten houses to be erected. When of a way appurtenant to the land on which it was provided that none but the occupants the houses stood? The determination of the of the new buildings so to be erected should question depends on the intention of the par- ever be able to use the right of way, it is ties as found in the words used to express plain it was the intention of the grantors that their meaning as applied to the subject-mat- the buildings referred to were the ten brick ter. Codman v. Evans, 1 Allen, 443; Sim- buildings to be erected by Brackett, and that, onds v. Simonds, 199 Mass. 552, 85 N. E. when by the destruction of those buildings S60, 19 L. R. A. (N. S.) 686; Cotting v. Bos- there could be no more occupants, the right ton, 201 Mass. 97, 87 N. E. 205. of way would be extinguished. In Cotting v. Boston, supra, the conveyance was of a lot of land "with the store thereon standing, with a privilege in the passage of The record shows that in 1853, when the easement was created, Boylston Place was a small and exclusive residential neigh-|* borhood in close proximity to the business the adjoining store, for the purpose of passsection of Boston, and that Eliot street was of a different character. The judge of the land court found that "The dominant intention of the parties was to preserve the exclusive character of the small residential locality then existing at Boylston Place. The confines of that locality were to be enlarged by the addition of a strip of land from the south, which was to be occupied by brick dwelling houses 'as of good style and of such class as shall accommodate occupants like those now occupying said place.' That was the only specification. It was the character of the occupants with which the parties were chiefly concerned, and the rights of way were to be so limited by physical barrier that 'none but the occupants of the new buildings so to be erected on said place shall ever be able to avail themselves of any of the privileges here. by conveyed.'" The cases heretofore decided by this court relating to equitable restriction are analogous in principle to those relating to easement; each is a property right in the estate to which it is appurtenant. Peck v. Conway. 119 Mass. 546; Sprague v. Kimball, 213 Mass. 380, 382, 100 N. E. 622, 45 L. R. A. (N. S.) 962, Ann. Cas. 1914A, 431; Riverbank Improvement Co. v. Chadwick, 228 Mass. 242, 117 N. E. 244, L. R. A. 1918B, 55. ing and repassing to the chambers of the store hereby conveyed." It was held that the privilege of passage ceased when the building. upon the land conveyed was destroyed, and that it did not attach to the land of the dominant estate. Baptist Social Union v. Boston University, 183 Mass. 202, 66 N. E. 714: Welch v. Austin, 187 Mass. 256, 72 N. E. 972, 68 L. R. A. 189. [3] The last clause cannot reasonably be construed as a temporary provision in regard to fencing lots, which for a short period might be vacant before the houses were built. It expressly and intentionally provides that none but the occupants of the new buildings shall ever be able to avail themselves of any of the privileges conveyed under the terms of the indenture. It is the contention of the respondent that the last clause is a summary of the effect of previous provisions, without in any way restricting their scope or adding any new element; that it follows the words "so that," which grammatically construed necessarily introduce a statement of the purpose or effect of the preceding provisions. We are unable to agree with this contention. Although in a written instrument the words used ordinarily must be construed in their usual and grammatical sense, unless that would lead to some absurdity, repugnance, or inconsistency (Grey v. Pearson, 6 H. L. Cas. 61, 106, Cotting v. Boston, supra), still a grammatical construction will not control the manifest intention of the parties as expressed in the instrument, if consistent with the rules of law. Frost v. Spaulding, 19 Pick. 445, 446, 31 Am. Dec. 150; Packard v. Old Colony R. R., 168 Mass. 92, 96, 46 N. E. 433. [2] It is apparent from the language of the indenture that the petitioners' predecessors were desirous there should never be any passageway between Boylston and Eliot Streets through Boylston Place; but that is not all they sought by the indenture to accomplish. They also meant to designate and define the character of the occupants when they provid- | ed that the houses to be erected should be "as of good style and of such class as shall accommodate occupants like those now occupying said place." Manifestly, in the ex-ings erected by Brackett would eventually tension of the way to the south, the grantors intended to continue to preserve and protect the neighborhood for residential purposes, by It is argued by the respondent that to limit the way to the occupants of the build leave the lot on which they stood without any approach; but that result cannot control the proper construction of the instrument by which the rights of the parties are establish- the defendant entered for breach of covenant, ed. It appears that the buildings which were forfeited the lease, and notified the plaintiff erected in accordance with the agreement to quit. The judge took a view of the premiswere substantial in character and stood on the land for nearly 70 years, and there is nothing in the record to show that when they were torn down by the respondent they might not have been occupied for residential purposes for an indefinite period. It results that the respondent's requests for rulings were rightly refused. The decision of the land court is affirmed. So ordered. es and upon all the evidence made the general findings that the plaintiff fails to prove his right to restrain a forfeiture, that he has broken the covenant "not to make or suffer any unlawful, improper, noisy or other offensive use of the premises," and that his default is willful, irritating, and with intent in part at least to displease the defendant. At The house was in a residential section, "the street being fully improved on both sides with modern houses costing, with land, from $10,000 to $20,000, this house being the only one not a single-family dwelling house. The house has a front piazza on the first floor, running along the entire front of the house, and sets back about 15 feet from the street, and the roof of the piazza constitutes the floor of a balcony for the upper apartment. This balcony has no roof, but is inclosed on three sides by a 22-foot outside railing. The alleged breach is in plaintiff's persistent use, in the daytime, of the front balcony, beginning months before said forfeiture and continuing up to the trial, by hanging clothes thereon for drying, upon lines stretched from the post of a piazza hammock to the front blinds or balcony railing, or both, in full view of passersby, against defendant's desire and protest. the back of the house on each floor, behind the kitchen, there is a back piazza, to the outside of which, on the lower floor, defendant has conveniently attached a portable clothes reel on which his family hangs clothes for drying, and the same thing could have been done by plaintiff on his floor. Defendant has furnished plaintiff with no such reel, nor erected any reel or other conveniences for hanging clothes on the lot in the rear of the house." "The plaintiff's wife, with his assent, has from time to time used the front piazza of their apartment to hang clothes upon for drying, and such use has been offensive to the defendant and to the neighborhood. She has done this because she has no convenient place for the hanging of her wash in any other place. She sent many articles to the laundries; but she and the plaintiff have been unwilling to incur the expense, slight though it is, to place a Report from Superior Court, Suffolk Coun- reel for drying clothing, etc., at the back of ty; William Cushing Wait, Judge. Suit by Arthur Finkovitch against Sadye F. Cline. On report to the Supreme Judicial Court. Bill ordered dismissed. Elisha Greenhood and Frank Freundlich, both of Boston, for defendant. RUGG, C. J. This is a suit in equity whereby the plaintiff, tenant of the defendant under a written lease for a term of three years, seeks to restrain the defendant from evicting him. The answer admits the lease and sets up entry and termination of the lease for breach of condition. At the trial it appeared that before the filing of the bill the house where one might be placed." These specific findings of fact under the circumstances warranted the general finding of breach of the covenant by the plaintiff. The ruling of law that the lease does not make it the duty of the landlord to supply a clothes reel was right. The lease imposes no obligation of that kind. Having made the findings of fact and ruling of law, the judge, being of the opinion that the consequences of a forfeiture is a "very severe penalty for the fault, for the lease is valuable especially at this moment," ordered a decree restraining the defendant from proceeding to eject the plaintiff for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |