323 Mass. 179 | Mass. | 1948
This petition was originally brought against the Commonwealth alone. Later, on motion of the petitioner, Boston Elevated Railway Company was added as a respondent. Later still, after the Metropolitan Transit Authority created by St. 1947, c. 544, took over the assets of the Boston Elevated Railway Company, the authority was substituted for the railway company as a respondent. St. 1947, c-544, § 20.
The allegations of the petition are in substance these: The petitioner is the owner in fee simple of a parcel of land on Massachusetts Avenue in Cambridge. On February 17, 1910, the Boston Elevated Railway Company, acting under St. 1906, c. 520, recorded a taking for itself for subway purposes of an estate in said parcel, reserving to the owners certain rights of support (particularly described in the petition and fully stated later in this opinion). On November 7, 1912, a person named Moore and others, then owners of the land, gave a deed to the railway of the part taken. This deed (described later in this opinion) contained a similar reservation. On May 1, 1920, the railway conveyed to the Commonwealth the said subway, including all right, title and interest of the railway in all land upon which said subway and its appurtenances are located. (See St. 1919, c. 369.) The petitioner has erected upon its parcel a building in conformity with law and with the ordinances and requirements of the city of Cambridge. "As a result of the said taking and the construction of the said subway, suitable support was not afforded for the said building, as was required by the terms of the said taking and provided for by the terms of the aforesaid deed.” The petitioner has been put to great expense in providing suitable support for said building and has been damaged in losing the use of the premises while providing support. The petitioner prays that a trial be had and that its damages be determined "in accordance with the statutes in such cases made and provided.”
Each of the present respondents insists upon its motion to dismiss the petition on the grounds (1) that no case is stated and (2) that the proceeding was not seasonably brought under St. 1906, c. 520, § 8. The Commonwealth
It is obvious that the parties have adopted a procedure of their own choice, to which, however, there appears no valid objection. All have assented to it, and the trial judge has proceeded in accordance with it, with the result that certain questions of law have been presented to us which ought to be decided before further proceedings are had. In substance the motions to dismiss, taken in connection with the agreement as to facts at the hearing on the motions, are equivalent to demurrers to the petition with a stipulation that the petition be treated as amended so as to include the agreed facts. Without further consideration of the technical correctness of the procedure adopted, we deal with the issues presented. Marsch v. Southern New England Railroad, 230 Mass. 483, 491-492. Johnson v. Johnson, 303 Mass. 204, 206.
Both the taking by the railway in 1910 and the deed
Both the taking by its terms and the deed by its habendum run to the railway and “its successors and assigns.” It seems immaterial which of these instruments is considered determinative of the rights in the land acquired by the railway and those reserved to the landowners, but, if there is any difference, it would seem that, in accordance with the implications of White v. New York & New England Railroad, 156 Mass. 181, we should proceed on the theory that the deed governs. See Hamlin v. New York & New England Railroad, 160 Mass. 459, 461.
On the facts appearing the Metropolitan Transit Authority is not liable. The only ground on which it could be
The railway did not become liable to the petitioner by virtue of any provision of St. 1906, c. 520, under which in 1910 it took land of the predecessors in title of the petitioner for which it received their deed in 1912. Section 8 of that act provided that the railway should pay “all damages to or for property taken or injured by it in any work done in or in connection with any subway construction under authority of this act”; but this is merely the usual provision for damages caused to property taken or injured in carrying out a public work. Presumably these damages were adjusted at the time of the taking or of the giving of the deed. There is nothing to show that failure to provide support for a new building in 1946 was an injury to property “in any work done in or in connection with any subway construction” under the statute of 1906. No subway construction was going on in 1946. If the petitioner meant to allege that because of the presence of the subway its land-was less capable of carrying weight than as if the subway had never been constructed, that was an injury done by the original construction of the subway and, except
For similar reasons which need not be restated in detail the railway never became liable under §§ 14, 16 as amended, of G. L. (Ter. Ed.) c. 79, the general eminent domain statute. Besides, there Was no taking under that statute. It follows that the petition was rightly dismissed as to the Metropolitan Transit Authority.
The same reasoning and other considerations as well lead to the result that the Commonwealth is not liable either under the statute of 1906 or under c. 79 of the General Laws.
There is, however, substantial ground for an argument that the reservation in the deed of 1912, although not a covenant running with the land, did create in|equity a servitude upon the railway’s interest in the land which would bind successors in title of the railway who took with
These are questions of difficulty, and we intimate no opinion upon them, since we can see no way in which the present petition can be maintained against the Commonwealth. It is axiomatic that the Commonwealth can be held answerable in its own courts only to the precise extent and in the precise manner to and in which it has submitted itself to their jurisdiction by statute. Nash v. Commonwealth, 174 Mass. 335, 338. McArthur Brothers Co. v. Commonwealth, 197 Mass. 137, 138. Glickman v. Commonwealth, 244 Mass. 148. Arthur A. Johnson Corp. v. Commonwealth, 306 Mass. 347, 349. It is stated in G. L. (Ter. Ed.) c. 258, § 2, in unqualified terms that “If the amount claimed exceeds two thousand dollars, the petition shall be brought
The order dismissing the petition as to the Metropolitan Transit Authority is affirmed. The order transferring the petition to Suffolk County is reversed, and although the Commonwealth’s motion to dismiss did not take the ground that the petition could not be first filed in Middlesex County, in the view we take dismissal is inevitable for that reason,
So ordered.
Doubtless a similar rule applies to a promise contained in an instrument of taking wMch, like that in the present case, is not a sealed instrument.
See Bronson v. Coffin, 108 Mass. 175; Whitney v. Union Railway, 11 Gray, 359; Norcross v. James, 140 Mass. 188, 190; Middlefield v. Church Mills Knitting Co. 160 Mass. 267; Whittenton Manuf. Co. v. Staples, 164 Mass. 319; Bailey v. Agawam National Bank, 190 Mass. 20, 23; Childs v. Boston & Maine Railroad, 213 Mass. 91, 94; Miles v. Boston, Revere Beach & Lynn Railroad, 274 Mass. 87, 91-92; Everett Factories & Terminal Corp. v. Oldtyme Distillers Corp. 300 Mass. 499; Giddings, Restrictions upon the Use of Land, 5 Harv. L. Rev. 275; 18 Harv. L. Rev. 214; Tiffany, Real Property (3d ed.) § 859, at page 481; Pomeroy, Equity Jurisprudence (5th ed.) § 1295, at pages 851-852.