COMMONWEALTH vs. JOSEPH PIMENTAL.

LUCIEN A. FLUET & another [Note 1] vs. RICHARD C. JULIAN & another. [Note 2]

362 Mass. 854

June 2, 1972

This is a bill in equity wherein the plaintiffs, a husband and wife, seek (a) a declaration that they have a right of way appurtenant to their land over adjoining land owned by the defendants and (b) injunctive relief preventing the defendants from interfering with or obstructing the alleged right of way. The case was referred to a

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master who, after receiving evidence and taking a view, found that the plaintiffs had acquired an easement by prescription over the defendants' land "by virtue of continuous, uninterrupted use . . . for at least a forty-year period, under a claim of right . . . which was open, notorious and adverse to the interests of the . . . [defendants] and their predecessors in ownership . . .." The defendants appeal from an interlocutory decree confirming the master's report and from a final decree ordering the defendants to restore the right of way and permanently enjoining them from interfering with it. The defendants first contend that the master's finding of an easement by prescription is not warranted by the subsidiary facts found by him. The subsidiary facts stated are sufficient to support the ultimate findings. Dodge v. Anna Jaques Hosp. 301 Mass. 431 , 435. The defendants also contend that the master erred in striking testimony by one of the plaintiffs that his property could be reached by a route other than that followed by the alleged right of way. This testimony was properly stricken as immaterial to the question whether an easement by prescription existed. It was not open to the defendants to argue that the location of any such easement should be changed. See Davis v. Sikes, 254 Mass. 540 , 546-547, and cases cited, and Anderson v. DeVries, 326 Mass. 127 , 132-133. There was no error.

Interlocutory decree affirmed.

Final decree affirmed with costs of appeal.

FOOTNOTES

[Note 1] Bernadette M. Fluet.

[Note 2] John F. Julian.