TURKOWSKA v. DIELENDICK, 321 Mass. 754 (1947)

76 N.E.2d 556

ANNA TURKOWSKA vs. NIKITA DIELENDICK others.

Supreme Judicial Court of Massachusetts.
November 4, 1947.

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.

The case was submitted on briefs.

T.J. Lane, for the defendants.

M. Nicholson, for the plaintiff.

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