Gilmartin v. Roche

8 R.I. Dec. 90

• Court: Superior Court of Rhode Island
• Decided: October 21, 1931
• Docket: No. 84323
• Status: Published

Opinion

BLODGETT, P. J.

Heard without the intervention of a jury. Action of trespass.

Plaintiffs own land and a building on Cottage street, Providence, and owned certain other land and buildings contiguous thereto conveyed to defendant in May, 1926 (Def’t’s Ex. A).

The trespass complained of is that defendant caused a change to be made in the level of her land and in doing so undermined the westerly foundation wall of a dwelling house located on land of plaintiffs, and dug and carried away large amounts of soil belonging to plaintiffs. Plaintiffs further claim that a certain cement structure constructed by defendant encroaches upon land of plaintiffs.

For plaintiff: Cooney & Cooney. For defendant: Augustine H. Downing.

The defendant carried on a trucking business and her purpose in changing the grade of her land was to make same more convenient for trucks to ■enter and leave her premises. In doing so a certain amount of soil was banked up either close to the westerly line of land of plaintiffs, or encroaching upon ■same.

The testimony was very conflicting upon two points, first, as to whether there was any encroachment on land of plaintiffs, and second, at what period the work was done, as defendant has filed a special plea of the statute •of limitations.

As to the time said work was done, the plaintiffs in the second clause of the bill of particulars place the time as between May, 1927, and the middle of September, 1927, but the testimony in behalf of plaintiffs upon this point was somewhat indefinite and uncertain, whereas the testimony on the part of defendant was positive that the work was begun in June, 1926, and finished before the middle of August, 1926. The plaintiff, John F. Gilmar-tin, first testified that he saw men excavating in the spring of 1926, and afterwards changed the year to 1927. A witness for plaintiffs, named Banner, could not say in what year the work of excavating was begun. Three witnesses for defendant, Sylvester, Downing and another witness by the name of Downing, testified positively •that the work of excavating began the latter part of June and was finished before the middle of August, 1926.

The writ in this case was issued ■September 10, 1930.

The Court sees no reason to doubt, the testimony of defendant’s witnesses In view of the uncertainty of the plaintiff himself as to the date the work commenced.

There is also grave doubt in the mind of the Court as to whether there was any encroachment on land of plaintiffs by defendant. In this respect plaintiffs have failed to sustain the burden of proof. The testimony of the engineer, as shown upon the blue prints on record in the case, shows plainly that the cement structure or wall constructed by defendant does n<?t encroach on the land of plaintiffs.

Decision for defendant.