200 Mass. 24 | Mass. | 1908
This case is before us upon an appeal taken by the defendants from a final decree overruling their exceptions to the report of the master, and allowing damages against the defendants as found by him. Although one of the purposes of the bill was to obtain an injunction against future trespasses, it now appears from the record that since the bill was filed Wales Avenue has been legally laid out; and hence the only question before us respects the matter of damages suffered by the plaintiff before the filing of the bill, and the extent to which any of the defendants are answerable.
The question whether the master was right in ruling that, for the acts committed by the water commissioners under the vote of the town passed in 1906, directing the commissioners to extend the water main in Wales Avenue to Cross Street and providing for the issue of the notes of the town to the amount of $2,000 to defray the expense, neither the town nor the commissioners were answerable to the plaintiff, is not raised by the
It appears from the report that' at the hearing before the master the defendants contended “ that the plaintiff suffered no damage from the destruction of the trees for the reason that they stood within the limits of the private way, and that the plaintiff had no permanent right to maintain them there, as the users of the private way had the right to remove them at any time.” The master ruled that the defendants being trespassers this defense was not open to them, and that the plaintiff was entitled to recover damages as though he had a permanent right to maintain the trees in the avenue.
In this the master was wrong. Even if the defendants were trespassers, they were entitled to show, as bearing upon the question of damages, the nature of the plaintiff’s right which had been invaded. They could do this, not for the purpose of justifying the trespass, but as throwing light upon what thing the plaintiff had lost and the consequent amount of the loss.
■ The ruling of the master that the plaintiff owned to the centre of the avenue was correct. There can be no doubt that by the express language of the deed from Upham and another, dated February 22,1900, conveying to the plaintiff the westerly lot now owned by him, the fee in the northerly half of that part of Wales Avenue adjoining the lot was included in' the description ; it was a strip of land twenty feet wide and two hundred and thirty-eight feet long, “ more or less.” The language of the deed conveying to the plaintiff the easterly lot is not however so clear. The first boundary line
But even if the plaintiff owned to the centre of the avenue, it is clear from the facts appearing in the report that the abutters thereon had a right of way over its whole length and breadth. It follows that the plaintiff had no permanent right to maintain the trees and shrubbery upon the part of the avenue of which he was seised in fee. His right to maintain them was subject to the right of the abutters to have them removed.
The master found that as the result of constructing the new street illegally laid out, the market value of the plaintiff’s premises was diminished to the amount of $350. But he further found that “ if the court should rule that the defendants could avail themselves of the fact that the plaintiff had not a permanent right to maintain the trees and shrubbery on said right of way, the damages which the plaintiff would be entitled to recover would be very materially reduced and difficult to estimate, and I should be unable to find, upon the evidence before me, that the plaintiff was entitled to more than nominal damages.” It thus appears by the terms of the report that the damages were assessed upon a wrong basis, and that the final decree is wrong in allowing the plaintiff $350 damages and interest on account of the construction of the street.
But while the plaintiff has no permanent right as against the abutters to have the trees and shrubbery remain upon the avenue in front of his lots and owned by him in fee, still his right is subject only to this right of the abutters; and in estimating the damages suffered by him on account of the interference by strangers with this qualified right, it is proper to consider whether and to what extent the abutters would insist upon their right of way and what are the reasonable probabilities in this direction under the circumstances.
It is manifest that this view of the plaintiff’s qualified right
But the town cannot be held for this damage. The trespass of which the plaintiff complains consists of the entry upon his land and the acts done thereon. It is manifest that the act of passing the vote was not a trespass. The vote was illegal.
The persons, however, who committed or caused the damage are individually liable because they acted without any lawful authority, and that is so even if they were selectmen. Moynihan v. Todd, 188 Mass. 301, and cases cited. Being joint trespassers they are each liable for the whole damage. The same rule is applicable to the water commissioners.
We have considered the defendants’ exceptions which were not argued in their brief as waived. From what has been said it follows that as to the exceptions argued, those relating to the liability of the town and to the question of the amount of damages recoverable for the acts done in constructing the way are sustained, and the others are overruled.
The case must be recommitted to the master for the assessment of the damages upon this part of the case, and the appeal
So ordered.
The part of the description referred to was as follows: “ Beginning at the southeasterly corner of said parcel at a point on the northerly line of said avenue three hundred and fifty-three feet west from said Main Street; thence running westerly by said avenue one hundred and fifty feet.”
At a town meeting on August 15, 1904, the following vote was passed: “Voted, unanimously, That we accept the locating and laying out of the proposed new street from North Main Street to Cross Street as laid out by the selectmen; that the selectmen be and they are hereby authorized and directed to build the same.” The laying out of the street was illegal because the selectmen failed to file a plan as required by R. L. c. 48, § 71. At a town meeting held on May 31, 1906, the town directed the water commissioners to extend a water main from a point on Wales -Street to Cross Street.