171 Mass. 575 | Mass. | 1898
These are six writs of entry, to recover possession of six different lots of land, which are designated on the plan as lots A, B, C, D, E, and F, and each writ relates to one-lot. The plea in each case is nul disseisin, with a specification of an equitable defence by way of estoppel under St. 1883, c. 223, § 14, and a claim for an allowance for improvements under Pub. Sts. c. 173, § 19. Lot A was conveyed to the city of Lowell by deed dated January 17,1890 ; lot B, by deed dated December 20, 1889; lot C, by deed dated January 30, 1890; lot D, by deed dated December 17, 1889 ; lot E, by deed dated April 14, 1890; and lot F, by deed dated December 20,1889. Each of the deeds except that of lot E conveyed but one parcel of land, and after the description of the parcel contained the following conditional clauses:
*577 “ This conveyance is made on the express condition that the grantee shall, within three years from the date hereof, lay out and construct, and thereafter forever maintain, a public highway over the within described premises at least fifty feet in width, having the northerly line of the within described premises as the northerly line of such highway, and also on the express condition that that part of said premises not taken or used for said highway shall be improved, dedicated, and forever used by the said grantee as and for a common, park, or boulevard, and for no other purpose; and that if said grantee shall fail to keep and perform said conditions, or either of them, then and in such event this deed shall become and be absolutely null and void, and all and singular the above described premises, and all improvements and betterments thereon shall revert to and reinvest in me, the said grantor, and my heirs and assigns, as fully, completely, and effectually as if these presents had not been executed. . . . The right to take ,ice on the Merrimack River where it flows over the premises herein conveyed is hereby expressly reserved to the grantors, their heirs and assigns, or other person or persons who now have that right. It is, however, understood that the grantors, their heirs and assigns, or other person or persons above mentioned shall not have the right to pass over or cross any part of said premises except such as is covered by the river or such part as is or may be laid out or in use as a public highway, public road, or ferryway.”
The deed which conveyed lot E conveyed two other lots, the first lot, lot E, containing about 3.49 acres, the second about 575 square feet, and the third about 1.87 acres. After the description of the first lot, the deed contained this clause:
“ The conveyance of this lot is made on the express condition that the grantee shall, within three years from the date hereof, lay out and construct, and thereafter forever maintain, a public highway over the above described premises at least fifty feet in width, having the northerly line of the above described premises as the northerly line of such highway ; and also on the express condition that that part of the above described premises not taken or used for such highway shall be improved, dedicated, and forever used by the grantee as and for a common, park, or boulevard, and for no other purpose.”
“ The conveyance of the last two described lots is made on the express condition that the grantee shall, within three years from the date hereof, lay out said last two described lots as a public highway, and construct and thereafter forever maintain said public highway; and the conveyance of all the above described premises is made on the express condition that, if the grantee shall fail to keep and perform said conditions, or either of them, then and in such event this deed shall become and be absolutely null and void, and all and singular the above described premises, and all improvements and betterments thereon, revert to and reinvest in me, the said grantor, and my heirs and assigns, as fully, completely, and effectually as if these presents had not been executed. . . . The right to take ice found on the Merrimack River where it flows over the premises herein conveyed is hereby expressly reserved to the grantor, his heirs and assigns, or other person or persons who now have that right. It is however understood that the grantor, his heirs and assigns, or other person or persons above mentioned, shall not have the right to pass over or cross any part of said premises, except such as is covered by the water of the river, or such part as is laid out as a public highway.”
We do not understand that the deeds conveyed these lands to the city expressly to be held for the purpose of a common, park, or boulévard, but that they conveyed them to the city without limitation, except as provided in the conditions in the deeds. Copies of the deeds are not before us.
The report of the presiding justice recites as follows: “ After counsel for the demandants had made his opening, counsel for the tenant inquired if the description of the premises demanded in the several writs covered and corresponded with the description of the premises conveyed in the several deeds to the city. Counsel for demandants replied that the descriptions in the writs were the same as those in the deeds, except that that portion of the several tracts conveyed to the city by said deeds which had been laid out as a public street was not included in the description in the writs, and stated that neither of the demandants made any claim to the land within the limits
The presiding justice found the facts, a part of which appear in the margin.
As the highway has been constructed, the question is whether there has been a breach of the conditions that the parts of the premises not taken for a highway “ shall be improved, dedicated, and forever used by the grantee as and for a common, park, or boulevard, and for no other purpose.” The title in fee to all the parcels vested in the city of Lowell, subject to conditions subsequent by the breach of which its title would be devested, and would revest in the grantors and their heirs. The subterranean waters in the parcels were a part of the parcels, and the grantors in the deeds have not reserved to themselves the property in these waters, while the deeds are in force. The grantors owned other lands northerly of the lands granted to the city, and they had an interest in imposing the conditions that the lands granted, so far as they were not used for a highway, should be “ improved, dedicated, and forever used as a common, park, or boulevard.” From the form of the conditions, it is apparent that the city could use the lands in part as a common, in part as a park, if
In Wellington, petitioner, 16 Pick. 87, 99, the terms of the grant of the town commons by the proprietors of common and undivided lands to the town of Cambridge were that “ the same is hereby granted to the town of Cambridge, to be used as a training field, to lie undivided, and to remain for that use forever, provided, nevertheless, that if the said town should dispose of, grant, or appropriate the same, or any part thereof, at any time hereafter, to or for any other use than that aforementioned, then, and in such case, the whole of the premises hereby granted to the said town shall revert to the proprietors granting the same,” etc. Of this the court say: “By the grant the town became owners of the soil with full power, as such owners, to make any use of the property which owners of land can make, subject only to the restraint and limitation expressed in the condition. All such limitations and restrictions, especially those which go to create a forfeiture, are to be construed strictly, and not to be extended beyond the plain terms of the clauses in whicli they are expressed, and the obvious purposes for which they are intro
In French v. Quincy, 3 Allen, 9, it is said in the opinion: “ It is sufficient if a condition is performed in substance.”
In Crane v. Hyde Park, 135 Mass. 147, it is said in the opinion: “ The demandants’ claim is strictissimi juris. It is well settled that such a condition, when relied upon to work a forfeiture, is to be construed with great strictness.”
In McKelway v. Seymour, 5 Dutch. 321, 327, it is said in the opinion: “So long as the land was used primarily and mainly for the purposes of a raceway, and the embankment necessary to support it, any use of it for other purposes, either by the water power company or by other persons, with or without their consent, so long as these uses were not inconsistent with its use for the main purpose, could not operate as a breach of the condition. The condition is to be construed in accordance with the manifest intention of the parties and the end they had in view. Conditions, when they tend to defeat estates, are stricti juris, and to be construed strictly.” See Rose v. Hawley, 141 N. Y. 366; Southard v. Central Railroad, 2 Dutch. 13.
It seems to us in the present cases that the conditions were intended to relate to the use to be made of the surface of the lands granted. We think that the demandants, continuing to be the owners of adjoining lands, provided that the lands granted to the city should be used only for a public highway, common, park, or boulevard, and for no other purpose, because uses for other purposes might be detrimental to their adjoining estates. The presiding justice has found “that the use of the land for the purpose of driving wells and drawing water therefrom, and the erection of engines and boiler-house, are uses and purposes not in the minds of the grantors, or even of the grantee, when the deeds were given.” As the grantee took
With reference to lot A, the presiding justice found that “ the pump used for raising the water from said wells into said large iron pipe is a steam pump, and, together with the engine and boiler for operating the same, is placed in a wooden building, which is about forty feet square, situated on the lot marked A ”; and that “ it is the intention of the city also soon to replace the wooden building upon said lot A, used for the pumping station, with a new structure of brick or stone constructed with artistic taste, and which may be made an attractive feature of the landscape.” It may be, when large tracts of land are granted for a public park, that a pumping station for irrigating the land granted, or for supplying it with water sometimes would be reasonably
Has the demandant Howe waived this breach, or is he estopped from insisting upon it? The presiding justice ruled on the facts found that there was no waiver or estoppel. Whether this is a ruling of law or a finding of fact, it is to be sustained unless the facts found, as matter of law, require a different ruling or finding. It is to be noticed that the terms of the deed were equally well known to both parties, and whether the city was violating the condition of the deed was a matter of which the city could judge as well as Howe. Howe did nothing actively to induce the city to erect the pumping station. He simply stood by and saw it
The bringing of the action for a part only of the land, a defect which was cured by the amendments allowed by the court, was not, we think, a waiver of the breach of the conditions. It was a natural mistake, the reasons for which appear; there was no intention to waive the breach, and the law does not attribute any such absolute effect to such a mistake.
The ruling of the presiding justice with reference to the claim for the value of improvements is as follows: “ 5. That on these facts, and there being no evidence of the value of the improvements to, if of any value to, the demandants, having been put in, the tenant .is not entitled to any compensation in either of said actions for the value of improvements made by it on the demanded premises, and found for the demandants in each case, and the tenant excepted.” This ruling is general, and relates to all the cases. The report concludes as follows : “ By agreement of the parties I report the cases to the Supreme Judicial Court for its determination ; if the above rulings are correct in law, and said amendments were properly allowed, judgment is to be entered for the demandant in each case. If either of the first four
According to the terms of the report there must be judgment for the tenant in each of the cases, except in that of Edward S. Howe v. City of Lowell. In that case there must ultimately be judgment for the demandant; but the questions whether the demandant should recover anything for rents and profits, and the tenant should recover for the value of improvements, are to be determined by the Superior Court.
So ordered.
The judge found the following facts, in addition to those appearing in the opinion. In 1889 and 1890, the city purchased a strip of land along the northerly bank of the Merrimack River about one and one half miles long and from two hundred to six hundred feet wide, the lands conveyed by the deeds above mentioned being the westerly portion of the strip; and, in pursuance of a resolution of the city council, a public street fifty feet in width was laid out and accepted, such street running longitudinally through said strip of land. Within three years from the date of any of the deeds of the demandants, besides the street, a driveway or “ speedway,” so called to distinguish it from the street, was constructed through said strip of land seventy-five feet wide, running parallel with the street and distant twenty-five feet therefrom, the intervening space being turfed over and planted with shade trees, the northerly line of the street and the southerly line of the speedway being also planted with trees; but very little more, if anything, has been done on the lands in question.
In 1891, 1892, and 1895, the city, for the purpose of obtaining a supply of water by means of driven or artesian wells, drove a number of iron pipes two and a half inches in diameter into the ground upon the land in question. After the experiments of both 1891 and 1892, which proved unsatisfactory, one or two of these pipes were left in the ground. In 1892 the
The judge found also that, soon after the work of driving the wells had begun, Howe, Underwood, and Wilson met and came to an understanding, at Wilson’s suggestion, that they would not then make any objection to the work, or say anything about their rights under the conditions in the deeds.