Centebar v. Selectmen of Watertown

Field, J. The plaintiff, an owner of real estate on Main Street in Watertown, seeks by this bill in equity brought in the Superior Court to enjoin the defendants, the selectmen and the inspector of poles and wires of that town, from erecting a fire alarm cable box in a certain location in the public sidewalk which adjoins the plaintiff’s real estate. The case was referred to a master. The trial judge entered an interlocutory decree overruling the plaintiff’s exceptions to the master’s report and_confirming it, and a-final decree dismissing the bill with costs. The plaintiff did not appeal from the interlocutory decree within the time fixed therefor by statute. G. L. c. 214, §§ 26, 19. He appealed from the final decree seasonably. We are of opinion that the plaintiff’s exceptions to the master’s report cannot be considered under G. L. c. 214, § 27, as it does not appear to us that the final decree is erroneously affected by the interlocutory decree overruling the exceptions and confirming the report. Fay v. Corbett, 233 Mass. 403, 409, 410. Ledoux v. Lariviere, 261 Mass. 242. Among the facts found by the master are the following: The town “is installing a new fire alarm and signal system, which is underground .... The fire alarm cable boxes are being installed along Main Street ... as an essential part of the new system.” The plaintiff’s land is occupied by a building, having a frontage of about forty-two feet, containing two tenements and two stores. The entrance to the tenements is in the center, and an entrance to a store at each end, of the front of the building. In front of the building there is a sidewalk about twelve feet wide of which two feet in width are on the plaintiff’s land. The defendants propose to erect a cable box at the outer edge of the sidewalk just at — 124 — one side of the entrance to the tenements. It "is six feet in height, measures about six inches in diameter at the base for a height of about four feet and then measures about six inches by eleven inches for two feet more.” The rights of the public in the highway, including the sidewalk, in front of the plaintiff’s premises, include the right to lay therein the cable of a fire alarm signal system and to erect, equip and maintain therein the cable boxes incidental thereto. Even if the public right in the highway is an easement only, the erection of such a fire alarm signal system is not an additional servitude. See Pierce v. Drew, 136 Mass. 75; New England Telephone & Telegraph Co. v. Boston Terminal Co. 182 Mass. 397, 399; Commonwealth v. Morrison, 197 Mass. 199, 203, 205, and cases cited; Crullen v. Edison Electric Illuminating Co. of Boston, 254 Mass. 93, 94. See also Pettingell v. Chelsea, 161 Mass. 368; Postal Telegraph Cable Co. v. Chicopee, 207 Mass. 341. The plaintiff does not question the existence of the public right as herein defined, but he contends that the exercise of it in the manner proposed will interfere with access to and from the public way from and to his premises. Undoubtedly a right of access to and from the public way is an incident of his ownership of this land. Anzalone v. Metropolitan District Commission, 257 Mass. 32, 36. In this respect his right is different in kind from the rights of the public generally. As to the effect of the proposed erection of a cable box on access the master found that the "access to the plaintiff’s property and the highway will not be rendered difficult or dangerous or impaired or interfered with in any substantial degree.” He found also that it "will be convenient for the plaintiff, his tenants and customers, to park automobiles on the highway at or near the curbstone ” and that the “sidewalk will not be less commodious or convenient.” These findings of fact are consistent with the master’s findings as to the size and location proposed for the cable box. Obviously the proposed cable box will not interfere at all with passage between the sidewalk and the plaintiff’s premises. The easement of access appertains to every por — 125 — tian of the land (see Anzalone v. Metropolitan District Commission, supra) but it does not follow that this easement includes a right to cross the sidewalk to and from the part of the public way used for vehicular traffic at all places along the outer edge of the sidewalk. See Anzalone v. Metropolitan District Commission, supra, page 37; Metropolitan District Commission v. Cataldo, 257 Mass. 38, 41, 42; Wegner v. Kelley, 182 Iowa, 259, 265. Nor does the easement necessarily include a right to cross at the place at the outer edge of the sidewalk which is in front of an existing entrance to the building. Though access to and from the public way may not be cut off wholly, the plaintiff’s right thereto is limited by the public right reasonably exercised. See Anzalone v. Metropolitan District Commission, supra, pages 37, 38; Metropolitan District Commission v. Cataldo, supra. See also Sears v. Crocker, 184 Mass. 586, 588, 589. According to the facts found by the master, the erection of the cable box as proposed will be a reasonable exercise of the public right. Hence the plaintiff’s right of access will not be invaded, and neither art. 10 of the Declaration of Eights of the Constitution of the Commonwealth nor the Fourteenth Amendment to the Constitution of the United States, which the plaintiff invokes, will be violated. There is no basis in the facts found by the master for a contention that any private right of the plaintiff other than his right of access will be interfered with by the erection of the cable box as proposed. Moreover, he cannot maintain this suit to enforce any right which does not differ in kind from the rights of the rest of the public. Robinson v. Brown, 182 Mass. 266, and cases cited. Warner v. Mayor of Taunton, 253 Mass. 116. The question whether the defendants are the proper officers to erect the cable box as proposed, now raised by the plaintiff for the first time so far as the record shows, is not open here. It appears from the master’s report that “The hearings were conducted upon the agreement of all parties that there was no question of the defendants’ authority to place a fire alarm cable box in some location in the said public sidewalk, but the only question at issue was whether the defendants had ex — 126 — ercised that authority arbitrarily and unreasonably and without regard to the plaintiff’s injury.” It follows that the bill was dismissed properly. Decree affirmed with costs.