Dunham v. Gannett

126 Mass. 151, 1879 Mass. LEXIS 191

• Court: Massachusetts Supreme Judicial Court
• Decided: January 11, 1879
• Status: Published

Opinion

Ames, J.

If the platform, at the date of the bond, was a part of the building, then the corner of the platform is the corner spoken of in the bond, and the defendant’s theory of the case is the correct one. When this case was before the court on a former occasion, this was adjudgéd to be the rule which should govern the new trial. 124 Mass. 151. In the judgment then given, an attempt was made to illustrate the proposition by likening the platform, in the mode of its attachment to the building, to a “ porch, veranda, piazza or outside flight of stairs.” It has unfortunately happened at the second trial, that what was meant merely as an illustration has apparently been taken as a literal definition; and a distinction has been made between temporary and permanent parts of the building, which was far from our intention. The question for the jury was, where at the date of the bond was the corner of the building, and not where was the corner of the “upright part” of the building. We did not anticipate that the ingenuity of counsel would devise any such subdivision of the building into different parts, as seems to have been carried out at the new trial. If the platform had been a movable chattel, so that it could be taken away bodily and replaced at pleasure, the case would be different. But if at the date of the bond it was in fact a part of the building, the fact that some subsequent occupant had no occasion to use it, or saw fit to take it away, ought not to be permitted to obscure the question as to the true course of the boundary line.

As the question was submitted to the jury upon a test which was not the true one, the defendant’s

Exceptions must be sustained.