336 Mass. 156 | Mass. | 1957
This is an appeal from a final decree assessing damages and enjoining the defendants from further excavating loam and gravel from a parcel of land in Ipswich in which the plaintiff had an undivided one-third interest. We have no report of the evidence, but the judge made findings of fact.
Upon the death of the plaintiff’s father title to the land, which comprised about fifty-six acres, descended one third each to the plaintiff’s mother, his sister, and the plaintiff.
The plaintiff’s mother died testate on December 31, 1952, leaving all her estate to her daughter, Mrs. Booz. Subsequently the plaintiff and Mrs. Booz made a voluntary exchange of deeds, without any money consideration, in dividing the farm, and the plaintiff became the owner of the unit where the defendants had excavated.
Knowledge by the plaintiff that his mother from time to time for the last twenty years sold small quantities of gravel, the proceeds of which were used for her own purposes or for the payment of taxes without objection from him, did not require a finding that he had authorized her as his agent to contract with the defendants for the removal within ten years of the gravel and loam contained in thirty acres at the rate of $400 an acre, a transaction in which the mother did not purport to represent anyone except herself and which the plaintiff did not ratify. He sought, practically as soon
One cotenant cannot be bound by the unauthorized acts-of another cotenant. Dillon v. Brown, 11 Gray, 179. Goldsmith v. Barron, 288 Mass. 176.
The damages were properly assessed as one third of the diminution in the market value caused by the excavating of the gravel and loam. Dickinson v. Boyle, 17 Pick. 78. Cavanagh v. Durgin, 156 Mass. 466. Rockwood v. Robinson, 159 Mass. 406. Crystal Concrete Corp. v. Braintree, 309 Mass. 463, 471. Gallagher v. R. E. Cunniff, Inc. 314 Mass. 7. Codman v. Wills, 331 Mass. 154. Since the plaintiff was not a party to the agreement with the defendants and did not receive any of the consideration paid by the defendants to his mother, we see no reason why the defendants should be credited with any part of the payment made to her.
Decree affirmed with costs of the appeal.