SHIRETOWN GLASS & ALUMINUM, INC. vs. JOHN R. HAMILTON, JR., trustee.

WILLIAM L. SMITH vs. RENA WHEELOCK MACALISTER & another.

5 Mass. App. Ct. 798

March 23, 1977

Following our earlier rescript in this case (see 1 Mass. App. Ct. 22 [1972]), the defendant Storrie (formerly Stoddard) disclaimed any interest in lots 76, 77 and 78 and filed a written waiver to that effect. The judge then (February 28, 1974) entered decrees dismissing the suit as to her and ordering specific performance for the plaintiff upon the terms outlined in the rescript. The plaintiff again

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appeals. Given the facts that the encroaching porch no longer exists and that Storrie disclaimed any rights in the subject lots, dismissal as to her was a proper method of disposing of that aspect of the case. Johnson v. Rayner, 6 Gray 107 , 108 (1856). Tappan v. Boston Water Power Co. 157 Mass. 24 , 31-32 (1892). A recital in the decree that Storrie had no right or interest in the parcels would have been proper but was not necessary. Curley v. Curley, 311 Mass. 61 , 67 (1942). The plaintiff is not entitled to damages from Storrie's now terminated trespass (if such it was), which caused no injury to his equitable interest. See Restatement (Second) of Torts Sections 157, 158 (1965); Harper & James, Torts Section 12 (1956). It was within the discretion of the judge to decline to award court costs to the plaintiff (see G. L. c. 261, Section 13, as in effect prior to St. 1973, c. 1114, Section 345). The plaintiff was not entitled to be awarded as damages against MacAlister the cost of litigation necessary to settle the question of the alleged encumbrance by Storrie. An award of the costs of appeal to the plaintiff would have been erroneous where the rescript was silent as to such costs. Carchidi v. Kalayjian, 264 Mass. 230 , 232 (1928). Contrast Mass.R.A.P. 26(a), 365 Mass. 873 (1974), which provides that "if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered." The decree for the defendant Storrie is affirmed, with costs of appeal to her. The decree against the defendant MacAlister is to be designated a judgment and is to be modified so as to give the plaintiff fourteen days from entry thereof to tender the $3,900.00 due. The defendant MacAlister is to have costs of this appeal.

So ordered.