Bates Sand & Gravel Co., Inc. v. Com.
| Decision Date | 25 April 1980 |
| Citation | 404 N.E.2d 81,380 Mass. 933 |
| Parties | BATES SAND & GRAVEL CO., INC. et al. v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James F. Bergin, Worcester, for Bates Sand & Gravel Co., Inc.
Richard T. Tucker, Cambridge, for Hazel L. Sawyer.
Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.
RESCRIPT.
We are asked to decide whether a Superior Court judge erred in holding that written instruments entered into by Bates Sand & Gravel Co., Inc. (Bates), and Hazel L. Sawyer granted to Bates a mere license to take gravel and other materials from land subsequently taken by the Commonwealth through eminent domain and that this license was insufficient to entitle Bates to damages from the taking under G.L. c. 79, § 6. 1 We conclude that this was error.
Bates and Sawyer executed two agreements, 2 one dated October 1, 1970, and another dated December 18, 1970, and entitled "Agreement and Lease," which in substantially the same language granted to Bates the right to enter upon a specified parcel of Sawyer's land to remove sand, gravel, and stone in such quantities as Bates might desire. In addition to "One Dollar and other valuable consideration," the agreements provided that Bates was to pay Sawyer a monthly compensation based on the amount of sand removed during the preceding month. By the terms of the December agreement Bates' rights to remove such material were exclusive against all others except Sawyer's son and Sawyer, who reserved the right to enter upon and use her land for any purpose. Bates' rights were to continue until December 31, 1972, and should Sawyer not exercise her option to terminate the "lease" on that date, its rights were to continue three more years. Both instruments were acknowledged and recorded.
We conclude that the instruments in question transferred to Bates a present interest in the Sawyer land. Our conclusion is supported in part by the formalities the parties observed, namely the fact that the agreements were in writing, acknowledged, and recorded. See White v. Foster, 102 Mass. 375, 378-379 (1869). But we are also influenced by the substance of the rights conveyed. For at least the period dating from October 1, 1970, to December 31, 1972, Bates was granted a right of entry; a right to remove and take from the land sand, gravel, and stone; and a right to participate in the profits therefrom. This bundle of rights falls squarely within the definition of a profit a prendre, and we so designate it for the sake of historical accuracy. See Gray v. Handy, 349 Mass. 438, 441-442, 208 N.E.2d 829 (1965); Black's Law Dictionary 1090 (5th ed. 1979); Restatement of Property § 450, comment f (1944); 3 H. Tiffany, Real Property § 839 (3d ed. 1939). Cf. First Nat'l Bank v. Konner, 373 Mass. 463, 367 N.E.2d 1174 (1977). We agree with the Appeals Court's conclusion that the fact that Bates' interest was held in gross and was not exclusive does not convert the profit into a license. --- Mass.App. ---, --- a, 393 N.E.2d 956 (1979), and cases cited. Nor do the provisions for monthly payment based on a fixed price per unit of earth materials extracted require a different result. See Moore v. Schultz, 22 N.J.Super. 24, 30, 91 A.2d 514, (1952), aff'd, 12 N.J. 329 (1953). Cf. 2 H. Tiffany, Real Property § 588 (3d ed. 1939). Contra United States v. 1,070 Acres of Land in Houston County, Ga., 52 F.Supp. 378, 379-380 (M.D. Ga. 1943) (dicta).
As the owner of the profit a prendre, Bates held a compensable interest in the condemned real estate. 2 Nichols, Eminent Domain § 5.72(7) (rev. 3d ed. 1978). It should have been allowed to share in the compensation to be awarded for the land as enhanced by the existence of the deposits of sand, gravel, and stone to the extent of the fair market value of its interest. See H. E. Fletcher Co. v. Commonwealth, 350 Mass. 316, 323-324, 214 N.E.2d 721 (1966); Joseph DeVries & Sons v. Commonwealth, 339 Mass. 663, 664, 162 N.E.2d 269 (1959); Manning v. Lowell, 173 Mass. 100, 102-103, 53 N.E. 160 (1899); Providence & Worcester R.R. v. Worcester, 155 Mass. 35, 41, 29 N.E. 56 (1891); 4 Nichols, Eminent Domain §§ 13.22, 13.22(1) (rev. 3d ed. 1978). See generally Roberts, Condemnation of Coal, Lignite,...
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