133 Mass. 167 | Mass. | 1882
The Midland Railroad Company in 1851 filed a location of its railroad over a tract of flats belonging to Cyrus Alger, of whose estate the defendant is the administrator. In 1853, Cyrus Alger conveyed by warranty deeds, containing
The plaintiff in the case before us, having by several mesne conveyances acquired all the franchises, rights and property of the Midland Railroad Company, subject to all its obligations and liabilities, was the real defendant in that case, .and was held to be liable for the damages sustained by Alger; and it was also held that Alger, being the owner in fee of all the land at the time the location was filed, in 1851, was entitled to recover the whole damages to all the land.
Under the direction of the presiding justice of the Superior Court, the jury made separate findings, apportioning the dam.ages to the two lots conveyed by Alger to Washburn and to Reed and Alger, stating in their finding the amount of damages sustained by each.
Washburn and Reed and Alger became insolvent, and their assignees, in 1866, executed the assignments of their claims under their petitions for compensation above referred to, which assignments will be hereafter considered.
After the decision in the former case, the plaintiff brought this bill in equity, in which it seeks to restrain the defendant from collecting that part of his verdict which was for the damages to the two lots sold by Alger, or for a decree that he shall hold that part of his verdict in trust for the plaintiff.
The plaintiff contends that the subsequent conveyances of Alger, with covenants against incumbrances, operated as equitable assignments to his grantees of his claim for damages on
This does not purport to transfer any claim which Washburn may have had against Alger for a breach of his covenant of warranty. It purports merely to transfer his claim for land damages, as set forth in his petition to the county commissioners. Under that petition, Washburn could not maintain any claim for damages to his land caused by the taking in 1851. At that time he had no interest in the land, legal or equitable. The title of the railroad was acquired when the location was filed. Alger was then the sole owner of all the land described in his petition, and he alone was the proper party to recover damages for that location. Boynton v. Peterborough & Shirley Railroad, 4 Cush. 467. Moore v. Boston, 8 Cush. 274. Old Colony Railroad v. Miller, 125 Mass. 1. Drury v. Midland Railroad, ubi sufra.
His subsequent grantees could not recover any damages for the taking in 1851 under their petitions. They could only recover for damages caused by the new location in 1854. It does not clearly appear whether the -new location took more of the land of Washburn and of Reed and Alger than the first one did. If it did, they would be entitled under their petitions to recover