O'Brien v. Ball
| Decision Date | 21 October 1875 |
| Citation | 119 Mass. 28 |
| Parties | Hugh O'Brien v. W. T. W. Ball |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued March 10, 1874
Suffolk. Action on the Gen. Sts. c. 137, § 5, to recover possession of a house on Kirkland Street in Boston, alleged to be held by the defendant unlawfully and against the right of the plaintiff. Writ dated May 23, 1872. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, on an agreed statement of facts in substance as follows:
On April 1, 1869, the plaintiff executed to the defendant a written lease of the said premises for a term of five years. The defendant entered into possession under the lease, and has continued in possession up to the present time. On March 1, 1872, one month's rent was in arrear and unpaid; the defendant declined to pay the same to the plaintiff, who on March 8 gave him a notice, in due form, to quit in fourteen days, for non-payment of rent.
On July 13, 1870, the city of Boston, in pursuance of the St. of 1868, c. 277, [*] passed an order in due form of law to take possession of said premises, and duly recorded the same in accordance with the act, in the Suffolk Registry of Deeds. Since the commencement of this action, the title to the premises has been reconveyed by the city to the plaintiff.
Some time in the fall of 1871, the city, by its contractors and workmen, entered upon the premises for the purpose of raising the building, as contemplated by the act. The defendant continued to occupy the premises as his dwelling, subject to the disturbance created by such raising, which was considerable; and he continued to pay rent to his lessor during and for some months succeeding the completion of the work done by the city, both parties acting in the belief that the lease continued in full force and effect. The city gave notice to the defendant that it would commence the work of raising prior to so doing, but the defendant paid no attention thereto.
In February, 1872, the defendant was informed, but not by the city or any of its agents, that he was liable to the city for the use and occupation of the premises, and in consequence declined to pay the rent in arrear March 1, as before stated.
Judgment affirmed.
A Russ, for the plaintiff.
R. I Burbank & R. Lund, for the defendant.
The defendant entered upon and occupied the premises, possession of which is sought by this proceeding, by virtue of a lease from the plaintiff which was for the term of five years. During this term the city of Boston, acting by authority of the St. of 1868, c. 277, for the purpose of making certain improvements of a public character, took the estate in accordance with the...
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