Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 215 Mass. 381

Cornell-Andrews Smelting Co. v. Boston & Providence Railroad

215 Mass. 381 | Mass. | 1913

Sheldon, J.

This case is somewhat troublesome to deal with by reason of the number and complexity of the questions presented and the difficulty of picking out the decisive points. But that difficulty has been considerably and needlessly increased by the course of the respondent in setting out the testimony by question and answer instead of giving the substance of the evidence in a narrative form. This is a reprehensible method of alleging exceptions. See Odabashian v. Apsley Rubber Co. 214 Mass. 66. In Ryder v. Jenkins, 163 Mass. 536, it was held that a bill of exceptions in which all the testimony was stated at length without any attempt at abridgment was rightly disallowed. The language of the statute (R. L. c. 173, § 106) has been modified since that decision, but it would be hard to say that its meaning had been materially altered. See the cases collected in Commonwealth v. New York Central & Hudson River Railroad, 206 Mass. 417, 419. In Clemens Electrical Manuf. Co. v. Walton, 173 Mass. 286, there had been an attempt to abridge the evidence. Moreover, all the requests for rulings made by the petitioner, the respondent and the intervening petitioner, are inserted in extenso, without stating what ones were given and what were refused, but the court is left to ascertain these important questions from an examination of the charge and of the colloquies between the judge and the different counsel, which are also reported in full. As was said in Burt v. Merchants’ Ins. Co. 115 Mass. 1, 16, such a course cannot be too strongly condemned. No objection however has *388been made to the exceptions, by motion to dismiss or otherwise, and we have considered them.

1. We find no error of law in the rulings made as to the boundaries of the land leased to the petitioner, and as to the petitioner’s being entitled to some right of way to South Main Street over the respondent’s railroad. The land leased to the petitioner was bounded easterly by the respondent’s land, though called its layout, and did not purport to be bounded by the original layout of the respondent’s railroad. This is too manifest to need discussion. The deed given by Watson and Newell to the respondent reserved to those grantors the right of way over the railroad. This must have been intended and understood to include, indeed it necessarily did include, the right to pass over all the width of the respondent’s land, including that conveyed by the deed m question. Otherwise the reservation would have had no effect. That was the right which Watson enjoyed and could transfer to .the petitioner; and it sufficiently appears that it was the way actually used by the petitioner over the railroad.

The right of way in the other direction was described in the deed from Manchester to Wolfenden as “a right of open way'from my land easterly of said river [Ten Mile River] through said lane to County Street.” At this time and previous thereto, according to the testimony of Manchester, a witness for the respondent, the land to which this way was appurtenant, which afterwards passed to Watson, and a part of which constituted the land leased to the petitioner, had no structures upon it and was used exclusively for agricultural purposes. So far as appeared, that part of the way to South Main Street which crossed the respondent’s railroad was created in 1836, by the stipulation in the deed of Leprilete Sweet to the respondent for a passway “ over said road for farming purposes.” This gave a right to use that “passway” for farming purposes only; and the petitioner, as to that part of the way which crossed the original location of the railroad acquired no right to use .it for any other than farm purposes. Atwater v. Bodfish, 11 Gray, 150. Parks v. Bishop, 120 Mass. 340. Baldwin v. Boston & Maine Railroad, 181 Mass. 166, 168. Nye v. Swift, 190 Mass. 143, 147. Allan v. Gomme, 11 Ad. & El. 759. Henning v. Burnet, 8 Exch. 187. There was not here a general grant or reservation of an unrestricted right of way, as might have been the case if the question *389had arisen under language like that in the deed from Manchester to Wolfenden, “ a right of open way.” Had there been in the deed from Sweet to the respondent such a reservation of an unrestricted right of way, the weight of authority is in favor of the contention that the way would have been available to the owners of the dominant estate for any changed use to which that estate afterwards might reasonably be put. Johnson v. Kinnicutt, 2 Cush. 153, 157. Blood v. Millard, 172 Mass. 65. Gorton-Pew Fisheries Co. v. Tolman, 210 Mass. 402, 412. Randall v. Grant, 210 Mass. 302. Abbott v. Butler, 59 N. H. 317. Arnold v. Fee, 148 N. Y. 214. Gunson v. Healy, 100 Penn. St. 42. Accordingly, so far as the way to County Street is concerned, we find no error in the rulings made at the trial. We do not overlook the fact that there was evidence of a more unrestricted use of the way over the railroad; but the purpose for which this evidence was admitted was narrowly limited, and we cannot treat it as tending to show that any increased right had been gained by prescription. The petitioner’s lease did purport to give to it a right of way over the railroad; but that could pass no greater right than belonged to Watson himself. In the absence of evidence that any increased right had become vested in the petitioner, the jury should have been instructed that the petitioner had no right to use that portion of the way which crossed the railroad for any other than farming purposes.

This ruling was made at first; but the judge afterwards withdrew it, and instead thereof read to the jury some of the language used in the opinion of this court reported in 202 Mass. 595,596,597. That language, however correct upon the facts then appearing, was inapplicable to the issue as presented at this trial. For this reason the respondent’s exceptions must be sustained.

2. The contention that the damages should be assessed according to the provisions of R. L. c. 48, §§ 17, 18, and not in the manner prescribed by §§ 20-22 of the same chapter, we do not consider to be open to the respondent. It has no concern with the division of the damages between the lessor and the lessee. Proprietors of Locks & Canals v. Nashua & Lowell Railroad, 10 Cush. 385, 387. Providence, Fall River & Newport Steamboat Co. v. Fall River, 187 Mass. 45, 50. As was said by Wells, J., in Edmands v. Boston, 108 Mass. 535, 547, these questions “are important only as between the several petitioners.”

*3903. The judge rightly ruled that the measure of damages was not what it would cost to buy land to construct a way, or the cost of building a way out of the petitioner’s premises. That was a circumstance to be considered; but it was not as matter of law the measure of the damages. This is settled by the former decisions of this case. 202 Mass. 585, 599 et seq.; 209 Mass. 298, 314, 315. The instructions as to this point and as to the respondent’s second request were adequate and correct. The judge ruled also that the petitioner, being a foreign corporation, was not an inhabitant of Attleborough, and had no right to apply to the selectmen of that town to lay out a way under the provisions of R. L. c. 48, §§ 65, 74. The respondent contends that this ruling was erroneous. If this ruling had stood alone, it may be that there would have been some difficulty in sustaining it. But that is not the case. The judge immediately added that the petitioner could have applied to the county commissioners, and that it would be for those commissioners to pass upon the application. Whether this was right or wrong, the respondent cannot complain of it. And the judge fairly left it to the jury to say how far the value of the property and the amount of the damage to be assessed was affected by the possibility of such a way being laid out and constructed. The respondent was not aggrieved by the rulings made upon this branch of the case.

4. The respondent’s ninth and tenth requests were properly refused. Rogers & Co. v. Simmons, 155 Mass. 259. National Fertilizer Co. v. Fall River Five Cents Savings Bank, 196 Mass. 458. Thornley v. J. C. Walsh Co. 200 Mass. 179. The petitioner had complied with the requirements of our statutes, not only before this suit was brought, but before the making of the decree by which its property was affected.

5. We cannot say that the judge erred in admitting Hartwell’s testimony as to the fair market value of the buildings. He was an experienced builder, and had constructed the buildings for the petitioner’s original plant. That he was not acquainted with the prices paid for real estate in Attleborough was not decisive against the competence of his testimony. He testified only as to the buildings.

6. The testimony of Andrews as to what he found in the books of the petitioner could be admitted in the discretion of the judge. *391The petitioner had produced the books at the request of the respondent, and the respondent had examined them by its expert. They could have been put in evidence by the petitioner. Long v. Drew, 114 Mass. 77. This being so, the questions put could properly be allowed. Boston & Worcester Railroad v. Dana, 1 Gray, 83, 104. Jordan v. Osgood, 109 Mass. 457, 464. Bicknell v. Mellett, 160 Mass. 328.

7. We cannot say that the testimony about the existence or non-existence of other factories in New England engaged in rolling, smelting and refining was either incompetent or prejudicial to the respondent.

8. The testimony as to dust and dirt coming into the factory from the causeway of the new street after that had been completed was not prejudicial to the respondent. See Hubbard v. Webster, 118 Mass. 599; Pye v. Faxon, 156 Mass. 471, 474; Cotton v. Boston Elevated Railway, 191 Mass. 103; Hyde v. Fall River, 189 Mass. 439. Testimony that dust and dirt came from the railroad after the change of grade had been made was excluded. The petitioner was not allowed to recover for injury to its business.

9. The testimony as to the insurability of the property was not incompetent. This was a circumstance that might affect its value. If the effect was a-permanent one, that also might be shown. The jury were told to consider this evidence only as it might affegt the market value of the property. Webber v. Eastern Railroad, 2 Met. 147. Here, as in many of its exceptions, the respondent seems to have overlooked the fact that the first question which the jury were to. decide was the amount of the whole damage done to the property considered as one undivided estate, and that the respondent had nothing to do with the subsequent apportionment of this amount between the lessor and the lessee.

10. It is not necessary to discuss the respondent’s other exceptions. None of them can be sustained. The rules of damages to be applied have been sufficiently declared in the former decisions made in this case. 202 Mass. 585; 209 Mass. 298. We do not care to reiterate the reasoning of those opinions.

11. The exceptions of the intervening petitioner raise the question whether the damages rightly were assessed under the provisions of R. L. c. 48, §§ 20-22, or whether the rule of division laid down in §§ 17, 18 of the same chapter should have been fol*392lowed. But that now is hardly an open question. It was really decided against the present contention of the intervening petitioner in the first opinion rendered in this case. Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 202 Mass. 585, 597, 598. It was held again when the case once more came before us (209 Mass. 298, 314) that the proper course to be taken was that which was adopted at the last trial. It was there said by Loring, J., after he had shown that the lessor ought to file an intervening petition in this action: “At the trial on the lessee’s petition and that intervening petition the entire damage done to the land leased to the Cornell-Andrews Company, including the buildings and the fixed machinery put in them by the lessee, must be determined and set forth in the verdict. Then the amount of this entire damage . . . must be apportioned between the lessor and lessee.” The rights of the lessor and the lessee as between themselves depend of course upon their agreements as shown by the lease. That was not a bare lease of the land. It gave to the petitioner rights of way outside the leased premises, which rights apparently were of value, and, it is contended, have been practically destroyed by the taking. It was contemplated that the lessee should erect buildings and install machinery; and it did so. It had a right to remove these trade fixtures, or some of them. This it has not done; but one of its complaints, one of the grounds upon which it claims damages, is the injury to the value of the property which it had a right to remove, an injury which it contends was so great as to be tantamount to a destruction of that value; and it is for the jury to pass upon the validity of this claim and to determine what damages, if any, should be allowed therefor. The case comes within the doctrine of Edmands v. Boston, 108 Mass. 535, and Providence, Fall River & Newport Steamboat Co. v. Fall River, 187 Mass. 45. The remarks in Willard v. Boston, 149 Mass. 176, 178, and Galeano v. Boston, 195 Mass. 64, 67, that the question is to be determined by the condition of the title as shown at the trial, refer to the condition of the title at the time of the bringing of the petition. It is the condition at that time which fixes the rights of the parties, and the proof of which at the trial enables the court to determine what those rights are. Those remarks do not mean that the question is to be reopened at each new trial, and that the result reached is to be varied according as some particular estate or some one of *393its incidents may have undergone a change since the bringing of the petition or since the former trial, or as some right to remove trade fixtures may or may not have been exercised in the meantime or may have had its value increased or lessened by the effect upon those fixtures of the taking made. Such circumstances may, by throwing a new light upon the old situation, cause a change in the quantum of damages to be allowed, or in the amount of the respective shares to be apportioned to the different parties in interest; but they cannot affect the right which either party has acquired to have the damages assessed and apportioned in the one way or the other, as would have been the case if the assessment and apportionment had actually been made, as theoretically they are made, at the very instant of the taking when the right of the owners of the different estates or interests accrued.

12. The intervening petitioner has argued also that the lessee had no right to remove the buildings and fixed machinery from the leased land, that they became when erected and installed the absolute property of the lessor. But this is not open upon his exceptions. The judge expressly ruled at the request of the intervening petitioner, that with respect to the damage to the use and occupation of the land, including the building and fixed machinery, the lessor Watson is entitled to all the damage for the period subsequent to the unexpired term of the lease. That included everything asked for by the intervening petitioner with reference to this part of the case. He did not ask for a ruling that there never had been a right of removal of the buildings and fixed machinery, and did not except to the rulings made upon this question. As there must be a new trial, we add that so far as his present contentions go further than the rulings that were made at his request, we regard the previous decisions made in this case as decisive against him.

13. No error is shown by any of the other exceptions alleged by the intervening petitioner.

As the petitions must be tried again, we have no need to consider the questions raised by the exceptions to the judge’s conditional order for a new trial.

Exceptions sustained.