Turkowska v. Dielendick

Massachusetts Supreme Judicial Court

Turkowska v. Dielendick

76 N.E.2d 556, 321 Mass. 754, 1947 Mass. LEXIS 765

CourtMassachusetts Supreme Judicial Court

DecidedNovember 4, 1947

StatusPublished

Cited by2 cases

This text of 76 N.E.2d 556 (Turkowska v. Dielendick) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Turkowska v. Dielendick, 76 N.E.2d 556, 321 Mass. 754, 1947 Mass. LEXIS 765 (Mass. 1947).

Pincite

Opinion

Exceptions overruled. Although the only exception contained in the bill of exceptions, which is to the denial of a motion to direct a verdict for the defendants, might be overruled on the ground that the bill does not show by direct statement or reasonable implication that it contains all the material evidence, Commonwealth v. McIntosh, 259 Mass. 388, 391, we prefer to consider the single contention of the defendants that the plaintiff had only a license to use the cemetery lot upon which she alleged the defendants had committed a trespass. This contention cannot be maintained in view of the stipulation of the parties that the plaintiff and her husband “are the owners of the cemetery lot.” Consequently, the plaintiff and her husband were not licensees as to the use of the lot but had at least an easement, or a right in the nature of an easement, to use the lot for burial purposes and could maintain trespass against one who wrongfully entered upon the lot. Meagher v. Driscoll, 99 Mass. 281. Feeley v. Andrews, 191 Mass. 313. Bowen v. Jones, 234 Mass. 90. Nonjoinder of the husband as a party plaintiff is not raised by an exception to the denial of a motion for a directed verdict. May v. Western Union Telegraph Co. 112 Mass. 90. Thomson v. Pentecost, 210 Mass. 223.

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Exceptions overruled. Although the only exception contained in the bill of exceptions, which is to the denial of a motion to direct a verdict for the defendants, might be overruled on the ground that the bill does not show by direct statement or reasonable implication that it contains all the material evidence, Commonwealth v. McIntosh, 259 Mass. 388, 391, we prefer to consider the single contention of the defendants that the plaintiff had only a license to use the cemetery lot upon which she alleged the defendants had committed a trespass. This contention cannot be maintained in view of the stipulation of the parties that the plaintiff and her husband “are the owners of the cemetery lot.” Consequently, the plaintiff and her husband were not licensees as to the use of the lot but had at least an easement, or a right in the nature of an easement, to use the lot for burial purposes and could maintain trespass against one who wrongfully entered upon the lot. Meagher v. Driscoll, 99 Mass. 281. Feeley v. Andrews, 191 Mass. 313. Bowen v. Jones, 234 Mass. 90. Nonjoinder of the husband as a party plaintiff is not raised by an exception to the denial of a motion for a directed verdict. May v. Western Union Telegraph Co. 112 Mass. 90. Thomson v. Pentecost, 210 Mass. 223.

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Bluebook (online)

76 N.E.2d 556, 321 Mass. 754, 1947 Mass. LEXIS 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turkowska-v-dielendick-mass-1947.

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