COMMONWEALTH vs. JOSEPH STUBBS.

MOISES CAMARA & another vs. MANUEL CAPETO & another (and a companion case).

15 Mass. App. Ct. 955

March 3, 1983

The common judgment entered in both actions is reversed for the reasons that there was no evidence at trial (1) that an easement to use or maintain the sewer line was expressly reserved or granted when the properties in question were severed from common ownership in 1952; (2) that at that time the use or maintenance of the line was strictly (or even reasonably) necessary to the continued enjoyment of what is now the Capeto property; or (3) as to the intentions of the parties to the severance concerning the continued use or maintenance of the line through what is now the Camara property. See Dale v. Bedal, 305 Mass. 102 , 103-104 (1940); Krinsky v. Hoffman, 326 Mass. 683 , 687-689 (1951); Swartz v. Sinnott, 6 Mass. App. Ct. 838 (1978). A new judgment is to be entered dismissing the action numbered 11785; a new judgment is to be entered in the action numbered 11747 which declares that the Capetos

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have failed to prove any right to use or maintain the sewer line through the Camara property; costs of appeal are not to be awarded to any party in either action.

So ordered.