Burt v. Merchants' Ins. Co.

Decision Date17 March 1874
Citation115 Mass. 1
PartiesWilliam L. Burt v. Merchants' Insurance Company
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Petition filed April 16, 1873, under the St. of 1873, c. 189, § 2, [*] by William L. Burt, as the agent employed by the United States under said statute, to the Superior Court for this county, against the Merchants' Insurance Company, and Charles D. Head and Francis Curtis, receivers of said company, which had been declared insolvent. The petition described the first estate mentioned in § 1, being the estate of the Merchants' Insurance Company, on the corner of Congress and Water Streets in Boston, and alleged that the plaintiff had attempted to purchase the said land of the defendants, and that the parties could not agree upon the price to be paid therefor; and prayed to have a valuation of the defendants' estate made by a jury in the manner provided in said chapter.

Trial before Rockwell, J., who, after verdict, allowed the following bill of exceptions:

"The receivers of the Merchants' Insurance Company were the general owners of said estate. Charles L. Haley was the lessee thereof, and Avery & Harris were sub-lessees under said Haley. The buildings on the land were totally destroyed by fire November 9 and 10, 1872, and only land was taken.

"The defendants offered evidence to show the value of said estate at the time of trial, claiming that the valuation to be made was to be the value of the estate at the time of the trial, as the nearest approach to the time of the taking, and not the value at the time of filing the petition: to which evidence the plaintiff objected; but it was admitted.

"The plaintiff asked for the following instructions: That in this case, under the St. of 1873, c. 189, the jury are to determine the value of the land of respondents, and their respective interest therein, at the time of filing the petition in this case, to wit, April 16, 1873, and not at any subsequent time, nor at the time of the hearing before the jury: That in no event, as against the said petitioner, is the value of said land to be increased beyond its fair cash market value, by reason of any apportionment of damages between the respective parties claiming an interest in said land; notwithstanding the jury should be of opinion that, as between the respondents, under their several contracts and leases, the aggregate value of their respective claims might or should exceed, or fall short, of the fair cash market value of said land, free from and not subject to any lease or contract made upon or concerning said land, as against the petitioner: That, as against the United States, the petitioner, the jury are to determine the value of said land, as land, at its fair cash market value, free from, and not subject to, any lease or contract made upon it, and as though one person owned it as one estate in fee, with interest thereon from April 16, 1873. These instructions the presiding judge refused to give."

The bill of exceptions then set forth at length the entire charge to the jury; so much of which as is material to the understanding of the points decided by the court was as follows:

"The object of the proceeding is to ascertain the value of certain real estate which the government of the United States manifests a desire to purchase, and to pay therefor the fair market value of the interest and claims of the respective owners of the estate. It is the fair market value that you are to ascertain; and your verdict will consist of several items, substantially these: In the first place, you will ascertain the total amount of the value to the owners of the estate, estimating the same as an entire estate and as if the same was the sole property of one owner in fee simple; and that may not improperly be called the total value of the estate. In the next place, you will ascertain the fair market value of the estate to the Merchants' Insurance Company who, in this case, are the owners of the fee of the land. In the third item, you will ascertain and find the fair market value of the interest and term of Haley, the first lessee. In the fourth item, you will ascertain the fair market value of the interest and term of Harris & Avery, the sub-lessees. And the sum of the last three items will be equal to the first; for it is a division that you are to make among these several parties in interest. The time at which these values is to be ascertained and fixed is the present time, the time of the trial and verdict, as being nearest the time when the purchase would be made and completed.

"You will, then, proceed to consider the evidence in that light, to ascertain the fair market value at this time. And I have stated that the first thing for you to ascertain is the total market value of the entire estate, to be ascertained from the evidence; that is, its value to the owners of the estate, estimating the same as an entire estate as if the same was the sole property of one owner in fee simple; and I add now, regard being had to the situation of the estate, and the manner of its occupation, that may not improperly be called the total value. You are to estimate it at its value to the owners of the estate, not to the owner, -- to the owners of the estate. It is the value to all the owners that is to be found; and you are to estimate the same as an entire estate as if the same was the sole property of one owner in fee simple; not as the sole property of the owner in fee simple, but as if it was the sole property of one owner in fee simple. You will then ascertain the value to the owners as an entire estate and as if there was but one owner in fee simple. You must, therefore, ascertain the value to all the owners; and, in doing so, you must estimate it as an entire estate and as if the same was the sole property of one owner in fee simple. Thus you will get the total value, or the fund which you are to divide among the several owners.

"Now, the several owners in this case are, first, the Merchants Insurance Company, who own the fee of the land; another owner is Haley, who leased this property of the Merchants' Insurance Company, for fifteen years from the 1st of March, 1870, and who has parted, substantially, with the value of his lease, for a consideration, but the term which he has conveyed to the sub-lessees is a little shorter in point of time than the lease to him; he is, therefore, an owner of this property, and he holds an interest in a term. The other owners are Harris & Avery, the sub-lessees, who hold the lease under Haley. These, then, are the three owners; and it is the value to them that you are to ascertain. And, when you come to apply the rule, that it is to be estimated as an entire estate as if the same was the sole property of one owner in fee simple, you will remark that it is not the same as if the language was, 'the value to the owner of the estate in fee simple.' It is the value as it would be to one owner in fee simple; and then that total value is to be divided between this owner in fee simple and the owners of the terms.

"The counsel for the United States contend, that this total value to all the owners of the estate is not so large as it would be if the term created by the leases was not in existence. In speaking of the term created by the leases in this connection, I may as well call it a term, though it belongs to the two owners, -- Haley and Avery & Harris. The counsel for the United States contend that the value of the entire estate, estimated as I have stated, should not be found by you to be so large as it would be if the term created by those leases was not in existence. That is to say, that the existence of the term diminishes the total value of this property, estimated in this way, from what it would be if there was no such term. The term which remains is eleven years and eight months. Does that term affect the total value of this estate to the owners? You will consider that in weighing the evidence, and making up this first item in your verdict; and if you find, upon the whole evidence, that the existence of that term makes the total value of this estate, estimated as I have said, less than it would be if the term was not in existence, you will regard that fact in making up your verdict, and make it up at the value, as you determine it ought to be, in the present situation of the estate, and the manner of its occupation. If you are satisfied, from the whole evidence in the case, that the existence of that term has no effect upon the total value, you will so find; and your verdict on that particular item will not be affected by the existence of the term.

"Having ascertained the total value, in this first item of your verdict, you have then to ascertain three things more; and, when you have ascertained them, you will have ascertained three items which will exhaust this total value, into which this total value will be divided. And the rules by which you are to ascertain them are these:

"In ascertaining the value of the interest and claim of the owners of this estate in fee, the Merchants' Insurance Company, you will look at their interest. You will see that they have conveyed a part of the interest which they held you will ascertain the fair market value of their interest, as it stands to-day, with a term created upon it by their lease having about eleven years and eight months to run; and consider, also, that that lease secures to them $ 15,000 rent, annually, payable quarterly, according to the terms of the lease. And you may, if you please, and it seems good to you, consider in this valuation the term...

To continue reading

Request your trial
51 cases
  • City of St. Louis v. Rossi
    • United States
    • Missouri Supreme Court
    • October 19, 1933
    ... ... Co. v. Dipple (Ky.), 16 Ky. L. Rep. 62; Edmands v ... Boston, 108 Mass. 535; Burt v. Merchants' Ins ... Co., 115 Mass. 1; P. F. R. & N. S. B. Co. v. Fall ... River (Mass.), 72 ... ...
  • Jefferson County v. Adwell
    • United States
    • Alabama Supreme Court
    • June 30, 1956
    ...these respects, it is a juster measure of valuation than a valuation of the estate at any subsequent point of time. See Burt v. Merchants' Insurance Company, 115 Mass. 1; 10 Ohio State Law Journal, p. True, the landowner still has possession of the land, and no easement thereon has been est......
  • Barnes v. City of Springfield
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 25, 1929
    ...as though Vincent E. Barnes was the sole owner of the entire tract was right, Edmands v. Boston, 108 Mass. 535, 544;Burt v. Merchants' Ins. Co., 115 Mass. 1, 15, 16;Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 209 Mass. 298, 304, 95 N. E. 887; but the judge erred in allowin......
  • City of St. Louis v. Rossi
    • United States
    • Missouri Supreme Court
    • October 19, 1933
    ...(Ill.), 100 N.E. 496; Paducah, etc., Railroad Co. v. Dipple (Ky.), 16 Ky. L. Rep. 62; Edmands v. Boston, 108 Mass. 535; Burt v. Merchants' Ins. Co., 115 Mass. 1; P.F.R. & N.S.B. Co. v. Fall River (Mass.), 72 N.E. 338; Cornell-Andrews Smelting Corp. v. Boston & P.R. Corp. (Mass.), 89 N.E. 11......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT