8 Mass. App. Ct. 331 | Mass. App. Ct. | 1979
In 1973 Hazel L. Sawyer petitioned for an assessment of damages (G. L. c. 79, § 14) for land taken by
The issue before us is whether the agreements between Bates and Sawyer conveyed rights to Bates which give rise to a claim under G. L. c. 79, § 6. That statute provides that when there is a taking by eminent domain "the damages sustained by every person in his property by reason of such taking” shall be awarded as compensation.
On October 1, 1970, Bates and Sawyer executed an agreement which provided that Bates could enter upon a specified parcel of Sawyer’s land and remove sand, gravel, and stone in such quantity as it might desire. In addition to the consideration of "[o]ne [djollar and other valuable consideration,” Bates was to pay Sawyer each month at a set rate per cubic yard or short ton for all the sand it had removed the preceding month. Paragraph 5 of the agreement stated that Bates held "exclusive” rights in that "Sawyer will not grant to anyone else the privilege of removing sand and stone from said parcel during the period hereof ... but Sawyer reserves to herself her successors and assigns, the right during the said period . .. to go on and use said tract of land for any purpose they may desire, but without unreasonable interference with
By the terms of the agreements Bates had exclusive right to all the sand and gravel against all others except Sawyer’s son. In addition, Sawyer reserved the right to enter upon and use her land for any purpose. Bates’ rights were to continue until December 31, 1972, and if Sawyer should not affirmatively terminate the agreement on that date, these rights were to continue for another three years.
We conclude that Bates possessed a profit á prendre, which has been described as “involving] primarily a power to acquire, by severance or removal from another’s land, some thing or things previously constituting a part of the land, or appertaining thereto, the holder of the profit a prendre having, as an integral part thereof, rights against the members of the community generally that they shall not interfere with the exercise or enjoyment of the power.” 3 Tiffany, Real Property § 839 (3d ed.
As the holder of a profit á prendre Bates possessed an interest in the land
The judgment as to Bates is reversed, and the matter is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
The cases Sawyer relies upon in urging that we conclude to the contrary are readily distinguishable. They involve rights to standing timber, and such rights have long been recognized in this Commonwealth as merely rights to the felled trees as personalty coupled with a license to enter and remove the timber. Drake v. Wells, 11 Allen 141, 142-143 (1865). Fletcher v. Livingston, 153 Mass. 388,390 (1891). Hanifin v. C & R Constr. Co., 313 Mass. 651, 658 (1943). Tiffany, supra at §840.