Boston v. Robbins

• Decision Date: 05 January 1877
• Citation: 121 Mass. 453
• Parties: City of Boston v. Nathan Robbins
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 453

City of Boston v. Nathan Robbins

Supreme Court of Massachusetts

January 5, 1877

Argued March 15, 1876

Suffolk. Writ of review to reverse a judgment recovered by the defendant in review against the plaintiff in review. Trial in the Superior Court, before Bacon, J., without a jury, who allowed a bill of exceptions in substance as follows:

The plaintiff in review having been defaulted in the original suit, now filed an answer to the original declaration, and the case was tried upon the issue thus raised. The original suit was brought by Nathan Robbins, trustee, to recover from the plaintiff in review the sum of $ 8889, being the sum awarded by the board of aldermen to Franklin S. Simonds Jonathan B. Simonds, and George W. Simonds, trustees under the will of Jonathan B. Simonds, for their land taken by the plaintiff in review, on November 15, 1869, for the purpose of widening Eliot Street.

It appeared that at the date of the taking and award Franklin S Simonds had died, and the estate was owned by Jonathan B Simonds and George W. Simonds, as surviving trustees, and was subject to a lease executed by the three trustees, and held by Job A. Turner, assignee of the original lessee, dated December 2, 1854, for the term of eighteen years from January 1, 1855. It further appeared, that on November 9, 1871, George W. Simonds was dead, and Jonathan B. Simonds was the sole surviving trustee, and that Jonathan B. Simonds and Turner having failed to agree upon a division of the damages awarded as aforesaid, and having failed to agree upon the choice of a trustee, under the provisions of the Gen. Sts. c. 43, §§ 17, 18, upon the petition of Jonathan B. Simonds, Nathan Robbins, was appointed by the judge of probate as trustee, and brought the original action to recover the amount of the award.

The plaintiff in review objected that the appointment of Nathan Robbins, as trustee, was void for want of jurisdiction to make the appointment, and that the original action could not be maintained. The judge ruled that the Probate Court had no jurisdiction or authority to make such appointment, and that the original action could not be maintained, and found for the plaintiff in review; and the defendant in review alleged exceptions.

Exceptions sustained.

C. R. Train, for the defendant in review.

J. L. Stackpole, for the plaintiff in review.

Gray C. J. Ames & Morton, JJ., absent.

OPINION

Gray C. J.

The question presented by this case is, in substance, whether, when the owner of land in fee has made a lease thereof for years, before it is taken for the laying out of a highway, entire damages should be assessed, and be paid to a trustee, under the Gen. Sts. c. 43, §§ 17, 18, or whether, after ascertaining the total amount of damages, that amount must be apportioned between the parties interested, according to the provisions of §§ 53-58.

The scope and purpose of these statutes may perhaps be better understood by tracing the history of the legislation upon the subject. The earliest enactments, regulating the assessment of damages for the taking of land in which there were different estates or interest, were introduced into the Revised Statutes of 1836, upon the recommendation of the Commissioners who reported the same.

By the Rev. Sts. c. 24, § 12, (§ 8 in the Commissioners' Report,) it was provided -- in conformity with the construction given by the court, as declared in Ellis v. Welch, 6 Mass. 246, 251, to the more general provisions of earlier statutes, which only mentioned "the owners" of the land -- that whenever it should be proved that any person claiming damages "is only entitled to an estate for life or for years in the premises, and that the remainder or reversion in fee belongs to another person," the county commissioners should make "such an apportionment of the damages between them, according to their respective interests, as shall be just and reasonable."

By the Rev. Sts. c. 24, §§ 48-53, it was provided that "whenever there shall be several parties, having several estates or interests, at the same time, in any land or any buildings standing thereon," taken or otherwise damaged by the laying out of a highway, and any one of such parties should apply for a jury to ascertain his damages, all the others should be made parties to the proceedings, and the jury should first ascertain the total amount of the damages, if any, sustained by the owners of such lands and buildings, "estimating the same as an entire estate, and as if the same...