Chandler v. Jamaica Pond Aqueduct Corp.

• Decision Date: 19 August 1878
• Citation: 125 Mass. 544
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Theophilus P. Chandler & others v. Jamaica Pond Aqueduct Corporation

125 Mass. 544

Theophilus P. Chandler & others v. Jamaica Pond Aqueduct Corporation

Supreme Court of Massachusetts

August 19, 1878

Argued June, 28, 1878

Norfolk. Petition to the Superior Court, filed April 11 1873, for a jury to assess damages sustained by the petitioners by reason of the taking, on April 28, 1870, by the respondent, under the St. of 1868, c. 182, of about 100,000 feet of land in West Roxbury.

After the former decision, reported 122 Mass. 305, the case was tried in the Superior Court, before Bacon, J., who allowed a bill of exceptions alleged by the respondent, the material parts of which appear in the opinion.

The case was argued in January, 1878, by M. Williams, Jr., for the respondent, and A. D. Chandler, for the petitioners; and judgment was afterwards ordered overruling the exceptions. The respondent thereupon moved for a rehearing, and this motion was argued in August, 1878.

Exceptions overruled.

Morton J. Lord & Soule, JJ., absent.

OPINION

Morton, J.

The St. of 1868, c. 182, authorizes the respondent corporation, "for the purpose of better supplying fresh water, and for saving and restraining the water that may percolate from Jamaica Pond into what was formerly known as Spring Pond, in land now owned by said corporation, to take, hold or purchase any land near or adjoining said land, now owned by said corporation," and empowers the corporation to "enlarge said pond, formerly called Spring Pond, and raise a dam on said land taken or purchased, to such height as may best serve to save and restrain the water now running to waste from said Spring Pond, the better to save and supply fresh water from said Spring Pond for aqueduct purposes."

Section 2 of the act provides that any person or corporation whose land is taken or injured by the Jamaica Pond Aqueduct Corporation under the act, may apply for a jury to assess the damages for such taking or injury, by petition to the Superior Court for Norfolk County, and that, after the petition is duly entered in court, "the cause shall thereupon proceed like other civil causes in said court." The pond called Spring Pond in the act is now known as Ward's Pond. The act of incorporation, to which this statute is additional, provides that the damages for land taken "may be estimated by the county commissioners of the county of Norfolk, saving to either party the right of trial by jury, according to the law which provides for the recovery of damages accruing by laying out public highways." St. 1857, c. 135, § 3. Though the St. of 1868 contains no express direction to that effect, it is clear, by reasonable implication, that the intention of the Legislature was that the same rules should govern as are applied in the assessment of damages in cases of laying out highways.

The bill of exceptions does not state fully the title proved by the petitioners, but enough appears to show that they were at the time of the taking, and had been for many years, in possession of all the land taken and injured, claiming to be the owners in fee. Among other deeds, a deed from "The Aqueduct Corporation" to John Ward, dated July 12, 1804, was put in evidence. The material parts of this deed are set forth in Jamaica Pond Aqueduct v. Chandler, 9 Allen 159, 160, and its construction is there considered. For convenience in this discussion, we will designate it as the Ward deed. The respondent offered to show that this Ward deed covered a part of the petitioners' land which was taken and injured.

The respondent did not contend that it had the right to show any title in itself derived from the old aqueduct corporation, under the deed given when that corporation was disseised. It admits that it is concluded, upon this point, by the former adjudication. Jamaica Pond Aqueduct v. Chandler, 121 Mass. 1. But it contended that by the Ward deed, which was a part of the petitioners' claim of title, the petitioners took only a base fee, and that the respondent had the right to rely upon this fact in reduction of damages.

It is not necessary to decide whether the Ward deed conveyed a fee simple or a base fee. In Jamaica Pond Aqueduct v. Chandler, 9 Allen 167, the court held that it passed more than a chattel interest. The counsel for the tenants in that case contended only that it passed a base fee, and the court so regarded it; but the question whether the habendum was not repugnant to the grant, so that it passed a fee simple, was not raised or considered. If we assume, for the purposes of this case, that it passed only a base fee, we are of opinion that the respondent could not avail itself of this fact in diminution of the petitioners' damages. A base or qualified fee is an estate which may continue in one and his heirs forever, but which has a qualification annexed to it, by virtue of which it may be determined when that qualification is at an end. Cruise Dig. tit. 1, § 68. The grantee under the Ward deed took at least a base fee determinable by the removal by the grantor of the pipes from his land. Until it is determined, he has a fee, with generally all the incidents of an estate in fee simple. Cruise Dig. tit. 1, § 71. The grantor has no subsisting title in the land, but only a possibility that it may revert to him by the happening of the event upon which it is determinable. He is not, within the meaning of the act under which these proceedings are instituted, a person or corporation whose land is taken by the respondent. His possibility of interest is too remote and contingent to be the subject of an estimate of damages by a jury.

The petitioners, having shown a possessory title, may maintain this petition. Hawkins v. County Commissioners, 2 Allen 254. And we are of opinion that, as owners of the fee, they have the right to recover the value of the land, even if a part of it is held by them under the Ward deed, and they have only a base fee in it.

It follows from these considerations that the Superior Court rightly rejected the evidence to show that a part of the land taken and injured was included in the Ward deed, and properly refused the respondent's third and fourth requests for instructions.

The next exception we will consider grew out of the claim of the respondent that, by the deed of the old aqueduct corporation to the city of Boston, dated in 1851, and by subsequent mesne conveyances, it took the easements reserved to the grantor in the Ward deed, and that the jury should consider the existence of these easements in reduction of damages. The court in form rejected this claim assigning as one reason that the easements appeared to be appurtenant to the mill site. We are not able to see that the reason given by the court was correct, but this was an immaterial error, because, upon a careful examination of the whole case, it is apparent that it was not prejudicial to the respondent. The first reservation is of "the right to any logs or pipes in the same leased premises for the purpose of conveying water from Jamaica Pond, or any of the streams, fountains and springs issuing from or near the same, through all and every part of the premises." This reservation would affect only the line of pipes which was in the ground at the date of the deed, in 1804. It would not affect the line of iron pipes laid afterwards, and which runs through the petitioners' land adjoining that taken, and which they claim is injured by the taking. The bill of exceptions does not show that the first named line of pipes runs across the land taken. If it did not, this reservation did not create any easement upon the land taken or the adjoining land, which is the subject of inquiry in this case. But another and satisfactory answer to the respondent's exception on this point is, that the jury allowed it in diminution of damages for the incumbrance of the pipes as they existed at the time of the taking in 1870. The undisputed evidence in the case showed that the respondent had maintained both lines of pipe, under a claim of right, for more than twenty years. It was therefore treated at the trial as having acquired a right by prescription to maintain them, and the jury were instructed to "deduct from the sum which they consider the fair value of the land, as unincumbered, such sum as they think this incumbrance of the pipes diminished the land in value." The respondent thus received the benefit of this easement of the pipes, and it is quite immaterial whether it existed in it by prescription or by a reservation in the Ward deed.

The only other reservation in the Ward deed which affects the premises in question is the right "of raising any dam above or on the westerly boundary of the leased premises, to raise, stay or conduct the water for the use aforesaid, and to dispose of, check, impede or use any water tending to or issuing through the same leased premises, at its pleasure." The respondent contended that it had a right under this reservation, to raise a dam and flow the land of the petitioners included in the Ward deed. It is a sufficient answer to this claim to say, that the uncontroverted evidence in the case shows that this easement was extinguished. At the...