MARIO CONSOLI & another vs. FRANK CATANIA & another.

MARIO CONSOLI & another vs. FRANK CATANIA & another.

6 Mass. App. Ct. 862

March 30, 1978

It is apparent from the face of the master's report (a) that he had a clear understanding of all the elements the plaintiffs were required to prove in order to establish their claim to a right of way by prescription over the portion of the southwesterly corner of the defendants' property which the master shaded on the sketch which he prepared as part of his report (see Mastandrea v. Baressi, 2 Mass. App. Ct. 54 , 55-56 [1974]) and (b) that the only real bone of contention between the parties was whether the plaintiffs had, at some time following 1959, relocated the walkway which had been used by their predecessors in title for more than twenty years prior to 1959. 1. The master's finding that "the location of the walk as it existed in 1959 coincides with its present location as shown on the attached sketch" is not vitiated by his recitations of the defendants' contentions and evidence to the contrary; those recitations do not constitute findings of fact in accordance with the defendants' contentions. 2. There is no inconsistency between (c) the master's observation that the "precise location" (emphasis supplied) of the southerly terminus of the walk "with respect to" the apex of the triangle formed by the southwesterly line of the plaintiffs' house lot and the southeasterly line of the defendants' property "was not established by the evidence" and (d) the master's finding of fact, obviously based on his view of the locus, that the walk crossed the area shaded on the sketch; the quoted observation constitutes nothing more than a form of mild complaint that the plaintiffs had not supplied the master with something comparable to a conveyancer's description of the area shaded by the master and verbally described by him in the concluding sentence of his original report. 3. Having thus disposed of the only objections of substance which were advanced by the defendants with respect to the master's original report, it becomes unnecessary to decide whether the ultimate findings in favor of the plaintiffs which are set out in the concluding paragraph of that report are based solely on the subsidiary findings previously set out therein (see Jones v. Gingras, 3 Mass. App. Ct. 393 , 395-396 [1975]; Bills v. Nunno, 4 Mass. App. Ct. 279 , 281-282, 283-284 [1976]), because those ultimate findings cannot be pronounced erroneous in either event. Part II of the interlocutory order of July 19, 1976, paragraphs 2 and 3 of the interlocutory order of October 27, 1976, and the judgment of October 29, 1976, are all reversed; the case is remanded to the Probate Court for the formulation of a conveyancer's description of the shaded area on the master's sketch (see Highland Club of W. Roxbury v. John Hancock Mut. Life Ins. Co., 327 Mass. 711 , 715-716 [1951]) and for the entry of a judgment which grants the relief sought

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by the plaintiffs in the second and third prayers of their complaint and dismisses the defendants' counterclaim.

So ordered.