209 Mass. 298 | Mass. | 1911
At the trial consequent upon the decision of this court in Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 202 Mass. 585, the respondent asked for a ruling in the words used by us in describing the rules of law by which the new trial then ordered .was to be governed. This the presiding judge
The second trial was had on the lessee’s petition against the railroad. The ruling requested by the respondent was in these words: “ The value of the lessee’s option of purchase, provided for in the lease, can neither enhance nor diminish the petitioner’s claim, as damages are assessed for injury to its interest as of the date of the taking.” This was the eighth ruling asked for by
Our former decision went on the footing that the damage done to the lessor’s reversionary interest (1) in the land leased to the petitioner and (2) in the buildings and machinery put on the land by the lessee at its expense, had been finally disposed of by the separate verdicts which the lessor had recovered, or at any rate by those verdicts coupled with a statement of the petitioner’s counsel made in argument before this court and acceded to by the respondent’s counsel. We shall have to deal later on with this statement and concession. In other words the former opinion went on the footing that, although originally the damage done in the case at bar had been done to land owned in part by a lessor and in part by a lessee (whereby a case within R. L. c. 48, §§ 20-23, was presented), yet when this case was sent back for a new trial by the decision in 202 Mass. 585, the amount due to the lessee was the only matter left to be determined, as was the case in Pegler v. Hyde Park, 176 Mass. 101. But although it was then assumed that the only matter left to be
There is no better way of arriving at a full understanding of that question than by starting at the beginning and following down the course of our decisions and of the statutes enacted by the Legislature. There is the more reason for doing that here because in the case at bar the proceedings have not been kept in the channel prescribed by these enactments of the Legislature.
It was held in Ellis v. Welch, 6 Mass. 246, that “ any person having an interest in the land [taken for a public way], either as lessee for years, tenant for life, or for any greater estate of freehold, as also he in reversion or remainder, is an owner within ” St. 1786, c. 67, § 1, giving to the owner of land taken for a highway compensation for damage thereby done. To have the damage done to the tenant in such a case determined by one jury and that done to the reversioner determined by another manifestly led or was likely to lead to results which varied when they should have been the same, even in the simplest of cases, for example, in case of a farm in the country. But there are cases where the miscarriage of justice likely to- result is still greater if the damage done to the tenant or tenants and that done to the landlord are determined in separate actions. Take the case put by the Commissioners of the Revised Statutes, where there are “ a number of tenants for different terms of years, on conditions creating very different rights and liabilities and exposing them to different degrees of injury.” Commissioners’ Report, 153. Or take as an example the ease presented in Patterson v. Boston, 23 Pick. 425, where the front wall of a building fronting on Hanover Street in the city of Boston and let out in parts to several tenants was taken down in widening that street and never replaced.
To remedy these evils the Commissioners of the Revised Statutes suggested that “ whenever there shall be several parties
The commissioners’ statement of the reasons for this suggestion was in these words: “ The provisions of these six sections, which are in the nature of a bill in equity, are intended to afford a more convenient means of doing justice to all parties in such cases.”
By St. 1851, c. 290, it was provided that “ Whenever any person shall have a claim for damages . . . having different or separate interests in the said property, so that an estate for life or for a term of years in the same belongs to one person, and the remainder or reversion in fee belongs to another,” an entire sum shall be assessed without apportionment, and shall be paid over to a trustee upon trust to pay the income of the trust fund to the tenant for life or for years and on the termination of that estate to pay the principal to those entitled to the reversion. This (with an amendment made by St. 1883, c. 253) is now R. L. c. 48, §§ 17-19. For cases within these sections see Bos
The purpose of these statutes regulating the method of procedure where a lot of land taken for a highway is owned by more than one person is twofold: First, to have the interdependent rights of all settled at the same time; and secondly, to establish the principle that the amount of damages to be paid where the same land is owned by several persons shall be determined as if it had been owned by one person in fee. This was stated in terms in the original act (Rev. Sts. c. 24, § 50), and is stated in terms in the present act (R. L. c. 48, § 22). It is this feature of the act which has been most often insisted upon by the court. In Edmands v. Boston, 108 Mass. 535, 544, Wells, J., said: “ The situation of the estate and the manner of its occupation are doubtless to be taken into consideration in estimating the injury caused by disturbing that occupation. But between the public and the landowner it is but one estate. The public right is exercised upon the land itself, without regard to subdivisions of interest by which the subject is affected through the various contracts of individual owners. The public cannot be expected to forego its right to take property for public uses because the exercise of that right will defeat private contracts; nor is it reasonable that losses arising from the failure of such contracts, which otherwise might furnish grounds of damage between the individual parties, should measure the compensation to be rendered for the property so taken. Such a rule would seriously impair the public .right. A fair compensation for the property taken and injury done, ascertained by general rules, is a substitute to the owners for that of which they are deprived. That is the whole of the transaction with which the public is concerned. The apportionment is merely a setting out to the several owners of partial interests of their corresponding
The parties who have a right to bring a .petition for damages or to intervene in one brought by another are those who have an estate in the lot of land taken or damaged. There is no case in which any one but the owner of an estate in the land in question has been allowed to bring a petition for land damages or to intervene in one brought by another, and it was on this ground that the case of Emery v. Boston Terminal Co. 178 Mass. 172, was decided.
It was said in Boston v. Robbins, 121 Mass. 453, 455, that: “ It was afterwards decided that these sections, in terms as well as in intent and spirit, were applicable to a tenancy in common, or to an estate in which one person had the legal title and another an equitable interest under a bond for a deed. Dwight v. County Commissioners, 7 Cush. 533. Proprietors of Locks & Canals v. Nashua & Lowell Railroad, 10 Cush. 385.” The second of these two cases (Proprietors of Locks & Canals v. Nashua & Lowell Railroad) is the case referred to above as the case in which it was decided that these sections were applicable to an estate in which one person held the legal title and another an equitable interest under a bond for a deed. In that case the Proprietors of Locks and Canals had given a bond to one Howard on May 14, 1844; the land was taken in August, 1846; Howard completed his payments on May 16,1847, ¡and received a deed at that time; and the petition was brought on July 11, 1850. Under these circumstances the Proprietors of Locks and Canals and Howard joined in bringing the petition for the sole benefit of Howard. What was decided and all that was decided was “ that the respondents, as they cannot be injured by a single assessment, can take no exception.” p. 387. This was pointed out by Colt, J., in Drury v. Midland Railroad, 127 Mass. 571, 578. More than that, the petition in Proprietors of Locks & Canals
By St. 1874, c. 388, it was provided that in cases provided for by St. 1851, c. 290, any special and peculiar damages suffered by a tenant should be assessed separately and paid to the tenant and not to the trustee. It was held in Galeano v. Boston, 195 Mass. 64, that in cases under the other section (where the fund is not paid to a trustee but is apportioned between the several persons whose estates together make up the fee) if there are damages special and peculiar to one tenant they should be dealt with in the same way.
The petition now before us is a petition for compensation for damages done by a decree for a change in a railroad private grade crossing made under R. L. c. 111, §§ 149 et seq., and the statutes amending these statutes. By the terms of § 153, the highway acts stated above apply to such petitions.
We understand that the learned counsel for the petitioner in effect concedes that ordinarily the only person who can bring a petition for compensation is the owner of an estate in the land. His argument is that the option added to the value of the lessee’s leasehold interest, and if it did he has asked with great insistence why the petitioner should not have compensation for the diminution in the value of all his rights under the lease including the option.
The objection to his contention which first presents itself is that it would be impossible to apportion the damage done to the land “ as if it were the sole property of one owner in fee simple ” between the lessee (who has an option to buy the fee if he elects to do so but not otherwise) and the owner of the fee subject to a lease for a fixed term of years and to this right of the lessee to purchase the fee at its election and only at its election.
But the real objection to this contention is that, although the
In such a case the holder of an option to buy is not remediless. Where land of B on which A has an option of buying the fee is taken by the exercise of the paramount power of eminent domain, A can no longer at his election buy the land but he can at his election buy the fund into which in equity the land has been converted by the exercise of the power of eminent domain. The doctrine that the compensation paid for land taken by the exercise of the power of eminent domain in equity represents the land and is subject to all the rights of persons who had rights in the land, is a familiar doctrine resting on principles of general application. See for example Holland v. Cruft, 3 Gray, 162; Bates v. Boston Elevated Railway, 187 Mass. 328, 337, and cases cited; Hunneman v. Lowell Institution for Savings, 205 Mass.
In the case at bar, before the taking the Cornell-Andrews Company had the right at its election to buy the property covered by the lease on paying the price named therein. After the taking this right attached to the land and to the lessor’s share of the damage done by the taking to the land covered by the lease. We are of opinion that the presiding judge should have given the eighth ruling asked for by the respondent without modification, and that the exception taken to his refusal to do so must be sustained.
We proceed to the consideration of several matters which will arise at the new trial.
Whén the first trial took place there were eight petitions before the court, consisting of four sets of two petitions each. Each set consisted of one petition against the Boston and Providence Railroad and of another against' the town of Attleborough. The first set of two petitions (numbers 4497 and 4498) were petitions brought by the Cornell-Andrews Smelting Company for damage done to the land, buildings and machinery covered by the lease. The second set (numbers 4600 and 4601) were petitions brought by Watson, the lessor, and covered all his land west of the railroad (ten acres in extent), including the seventy-eight thousand feet let to the Cornell-Andrews Smelting Company. The third set (numbers 4604 and 4605) covered all Watson’s land west of the railroad and south óf Maple Street including the land let to the Cornell-Andrews Smelting Company. And the fourth set (numbers 4606 and 4607) covered Watson’s land west of the railroad and north of Maple Street.
In both petitions brought by the Cornell-Andrews Smelting Company, (the lessee,) on motion made by it under R. L. c. 48, § 21, Watson the lessor was ordered to intervene. Pursuant to those orders he filed copies of the petitions in numbers 4600 and 4601 covering all his land west of the railroad, ten acres in extent.
The eight petitions came on for trial together, and Watson was required to elect between numbers 4600 and 4601, each of which covered the ten acres, and 4604, 4605, 4606 and 4607, in which the ten acres were divided into two parts as stated above. Watson elected to proceed with 4600 and 4601, each of which covered the whole ten acres, and the presiding judge directed verdicts to be entered for the respondents in numbers 4604,4605, 4606 and 4607. The jury found two verdicts for the lessee in the two petitions brought by it (numbers 4497 and 4498), the first against the town and the other against the railroad; and two verdicts for the lessor in the two petitions brought by him (numbers 4601 and 4600), the first against the town and the other against the railroad.
The lessee’s verdict in 4497 was set aside by the judge and its verdict in 4498 was set aside as the result of our decision in Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 202 Mass. 585. We infer from what appears that it has not yet been decided whether the verdicts in favor of the lessor in 4600 and 4601 are or are not to stand.
We are of opinion that when Watson the lessor was summoned in by the lessee to intervene in its petition he should have filed an intervening petition covering the land described in the lease and not one covering his whole ten acres. The lessee was not interested in the eight acres not covered by the lease and that land should not be made the subject of the intervening petition of the lessor in the lessee’s petition.
After the order to Watson to intervene in the lessee’s petition had been made, Watson’s right to proceed under his separate
It is manifest that the judge who presided at the first trial was wrong in taking separate verdicts fixing the damage done to the lessor and to the lessee, so far as the real estate "covered by the lease (including the buildings and fixed machinery) was concerned. It is equally manifest that a mistake was made at the second trial when (ignoring the fact that the lessor had intervened in it) the lessee’s petition against the railroad was tried before it had been ascertained whether the separate verdicts taken in the lessor’s independent petitions were or were not to stand. No new trial should have taken place on the lessee’s petition as a separate petition until the question whether the verdicts on the lessor’s petitions were or were not to stand. That question has not yet been settled. If the verdicts in the lessor’s petitions do not ultimately stand, the damage done to both lessor and lessee should be established by one verdict, as prescribed by R. L. c. 48, § 22, rendered in the petition or petitions brought by the lessee in which the lessor has been summoned in to intervene. Until the question has been decided whether the verdicts in the lessor’s petitions are or are not to stand, no trial should be had on the lessee’s petition.
The present status of these petitions has been brought into
We have not until now referred, to the fact that the buildings on the leased land at the date of the decree had been erected by the lessee at its own expense, and that there was in these buildings fixed machinery which had been attached to the freehold by the lessee and that this bad been done at the lessee’s expense.
Before considering the effect to be given to the statement of the lessee’s counsel acquiesced in by the counsel for the railroad, we stop to point out how a case should be dealt with where leased land (on which buildings containing fixed machinery have been erected by the lessee) has been taken or damaged by the exercise of the power of eminent domain.
Such buildings at the time of the taking are part of the freehold and as such are the property of the lessor subject to the leasehold interest of the lessee for the unexpired term of the lease. In estimating the damage done in such a case an entire sum is to be found (and set forth in the verdict) as if the property were owned by one person in fee, and this entire sum represents the whole damage done to the realty including the buildings and fixed machinery. Allen v. Boston, 137 Mass. 319. Williams v. Commonwealth, 168 Mass. 364. But where the buildings and the fixed machinery are put in by the lessee at its own expense, they are trade fixtures which the lessee has a right to remove during the continuance of the lease. See Smith v. Whitney, 147 Mass. 479; Antoni v. Belknap, 102 Mass. 193; Watriss v. National Bank of Cambridge, 124 Mass. 571, 575. In such a case, before the taking the lessee had a right to remove the buildings and fixed machinery. After the taking, that right is transferred to the buildings and fixed machinery plus the damages done to them by the taking.
But the respondent’s counsel never have acceded to that as the true interpretation of what then took place. It seems that this statement was made by the lessee’s counsel in answer to a question put by the Chief Justice to find out whether, having reference to the lessor’s claim for damages, the lessee’s separate petition could then be heard. Counsel for the respondent may well have understood that the statement in which he acquiesced, made in answer to that question, did not go to the length to which it goes standing by itself and as set forth in 202 Mass. 598. Counsel for the respondent has contended at great length in his brief in this case that under the charge of the presiding judge at the first trial the damage done to the lessor’s reversionary interest in the buildings and fixed machinery was included in the verdicts rendered on the lessor’s petitions, and that he never has agreed to any other view of the case. The lessor’s petitions for damages set forth that the buildings here in question had been erected on his land, and asked for damages sustained by him as set forth in the petition; and in our opinion, under the charge of the judge at the first trial the lessor’s share of damage done to the buildings and fixed machinery must be taken to have been included in the verdicts rendered on the lessor’s petitions. If the lessor’s proportion of the damage done to the buildings and fixed machinery was included in the verdicts rendered on the lessor’s petitions, the effect of the acquiescence of the respondent’s counsel in this statement would have been to make the respondent pay twice for the reversioner’s share of the damage done to the buildings and fixed machinery. Further, there are two statements in the opinion in 202 Mass., one at p. 598 and the other at p. 599, which show that this court did not then give to this statement the meaning which it is now sought to have attached to it. After making the statement quoted above
The term of the lease to the Cornell-Andrews Company has now expired, and the lessee’s right to remove the buildings and fixed machinery and to buy the fee under the option has in the absence of some further agreement come to an end. Some further agreement as to these matters may have been made between the parties. For these reasons it may be that at the new trial it will not be necessary to make the apportionments of the entire sum due for damage to the estate as if it were owned by one person in fee, which would have been originally necessary to preserve all the rights of lessor and lessee.
But if none of these matters has been thus eliminated by subsequent agreements and all the rights of the parties have to be established, the lessor should file an intervening petition covering his interest in the land subject to the lease. It was said by
A further apportionment should be made of the lessor’s share of the whole damage done to the real estate, so that his share of the damage done to the buildings and fixed machinery shall be separate from his share of the damage done to the land in order that the lessee may exercise its right of removing trade fixtures. That right, as we have said, after the taking covers the buildings and fixed machinery, and the damage done to them, including the lessor’s share of that damage.
When the petitions are amended so that all damage done to the interests of the lessor and of the lessee in the land covered by the lease is covered by one petition and intervening petition, and the damage done to the lessor’s other eight acres is covered by his independent petition, it will be proper to try them all together, as is provided in R. L. c. 48, § 29.
This brings us to a consideration of the questions raised by the petitioner’s bill of exceptions.
The presiding judge allowed the respondent to introduce evidence which tended to show that at a comparatively small expense a way could have been constructed connecting the leased land with new Olive Street, and that the value of the land (belong
The entry must be
Respondent’s exceptions sustained; petitioner’s exceptions overruled.
Stevens, J.
Maple Street, as stated in the former report of this case in 202 Mass. 585, 589, is the street shown on the plan there published as “ roadway,” “private way discontinued” and “ private way.”
The requested rulings were as follows: “7. There is no evidence that any effort on the part of the petitioner to obtain access to the street was practicable, and the petitioner’s damages actually suffered cannot be diminished by the failure to make the attempt to obtain access to the street.”
“ 12. (a) There is no evidence in this case that the market value of the petitioner’s leasehold and improvements was in any way affected by any probability that the petitioner could buy a way out.
“ (6) And the jury should not consider such probability if there be any.
“ 13. (a) There is no evidence that the market value of the petitioner’s leasehold and improvements was in any way affected by the probability that a way could be got through the County Commissioners.
“ (b) And the jury should not consider the probability of obtaining the way in such a manner if there be any.”