164 Mass. 467 | Mass. | 1895
The report of this case is in some respects too meagre to present the questions of law involved in it in a satisfactory manner. We do not know from the report whether the $2,587.86 which the plaintiff “ had to pay in damages ” “ in order to remove so .much of the encumbrance as is affected by the cases of Starkie and Green against Richmond,” was the sum of the damages assessed in those cases, if any damages were assessed, or whether it was a sum agreed upon by the parties to those suits. We do not know whether the court in the present case found that this was a reasonable sum to be paid, or whether the court held that, by reason of the notice of the pendency of those suits given to the husband of the present defendant, she became conclusively bound to pay to the present plaintiff the amount of the damages recovered in those suits, if any were recovered. We do not know why the court found that the plaintiff in the present suit was entitled to recover interest “ from October, 1892.” This may have been the date when the money was paid by the present plaintiff, but that does not appear in the report. The date of the writ in the present action is June 12, 1893. The report refers to the cases of Starkie v. Richmond and Green v. Richmond, found in 155 Mass. 188, and it may be considered that those cases as they are there reported are to be taken as a part of the report of the present case.
The original papers in those cases entered in this-court show that it was a part of the final decree in each case that the plaintiff’s damages should be assessed by a jury, but it does not appear, and we have no means of knowing that this was done, or
No specific questions of law are reported in the present case for the consideration of this court, but certain facts are reported, some of the evidence is reported verbatim, and there are certain findings of fact by the court, and this court is to enter, such judgment “ as shall be deemed proper.” We see no reason to doubt that the Superior Court was warranted by the evidence in finding as it did in the first and second clauses of the findings of fact set out in the report.
The remaining questions of law relate to the measure of damages. The plaintiff’s claim is, that the land conveyed to him by the defendant’s deed was on its southerly boundary subject to a right of way in favor of other persons. The suit is maintained on the covenant against encumbrances. The suits of Starkie and Green v. Richmond were suits in equity to compel the defendant therein, who is the plaintiff in the present suit, to tear down a building which he had erected, and which was found to extend over a small part of the way, and also to remove a fence which enclosed a triangular piece in the rear of the lot, which was subject to this right of way. The court, under the facts found in those cases, refused to order the removal of the building, and appointed commissioners to run the line of the way. We understand that the fence was at some time removed, leaving the triangular piece thereafter open for the use of the persons entitled to use the way. Although the building encroached upon the way, yet the court permitted the building to stand, and decreed that the plaintiffs in those suits should be compensated in damages to be assessed for the destruction in part of their right of way. We do not know on what principles the damages were assessed in those suits, if they were assessed, or what issues were submitted to a jury, if any were submitted.
If the fair interpretation of the third clause of the findings of facts set out in the report is that the plaintiff bought off the encumbrance of the right of way so far as the building extended over the line of the way, and had to pay therefor $2,587.86, and
It may be that notice of the pendency of a suit, without more, given to the person who is responsible over, may, under some circumstances, imply that the person notified is called upon to
Still, if this defendant is not bound by the assessment of damages in the suits of Starkie and Green, yet if it was reasonable for the present plaintiff to buy off the encumbrance, so far as the building was concerned, and if the sum paid was reasonable, the plaintiff can recover such reasonable sum in the present suit, with interest from the time of payment. If it was a question reasonably doubtful whether the plaintiffs in the suits of Starkie and Green were right in their contention as to the right of way, the present plaintiff had the right to defend those suits, and it may be that he had the right to ask the present defendant to defend them, and that any expenses reasonably incurred in defending against the claim of a right of way made in those suits he can recover of the present defendant. Bradshaw v. Crosby, 151 Mass. 237. Farnum v. Peterson, 111 Mass. 148. Whether such expenses should include reasonable fees paid for counsel, in addition to the taxable costs, is on the authorities a question of some difficulty. If it was the duty of the present defendant to defend the suits, and she .had an opportunity of defending them and declined to do so, then, if the present plaintiff in good faith defended them, it would seem that reasonable counsel fees should be recovered. Westfield v. Mayo, 122 Mass. 100. See Leffingwell v. Elliott, 10 Pick. 204. If no opportunity was given to the present defendant to defend the former suits, the law, perhaps, is more doubtful. See Lindsey v. Parker, 142 Mass. 582. Boston Albany Railroad v. Charlton, 161 Mass. 82. We are unable to determine from the report precisely what the court found in these respects.
One contention is that the present plaintiff, after notice by Starkie’s wife in 1878 that he was proceeding to build on
In regard to the triangular piece, we infer that the court in the present case estimated the diminished value of the plaintiff’s estate by reason of the encumbrance, not as of the date of the deed or as of the time of the trial, but as of date when the encumbrance of the right of way under the building was extinguished by purchase. In an action on the covenant against encumbrances, when the encumbrance is a right of way, and has not been relinquished, the damages are that amount of money which is a just compensation to the plaintiff for the real injury resulting from the encumbrance. Wetherbee v. Bennett, 2 Allen, 428. The general rule is stated in Harlow v. Thomas, 15 Pick.
We think that these damages are usually assessed as of the date of the trial. If there have been special damages theretofore suffered by the plaintiff by reason of the exercise of the right of way, these may be shown up to the date of the trial, and, if the easement is of a permanent nature, the question is how much at the time of the trial is the plaintiff’s estate diminished in value by reason of the existence of the encumbrance.
As it seems to a majority of the court that it does not appear upon what principles or rules of law the damages in the present case have been assessed, they are of opinion that there should be a new trial, but only upon the amount of the damages.
So ordered.