Cogliano v. Com.

• Decision Date: 27 June 1956
• Parties: Rose COGLIANO and another, v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 648

135 N.E.2d 648

334 Mass. 354

Rose COGLIANO and another, v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 10, 1956.

Decided June 27, 1956.

Edward O. Proctor, Boston (Edward O. Proctor, Jr., Boston, within him), for petitioners.

George Fingold, Atty. Gen., Max Rosenblatt, and Charles V. Statuti, Asst. Attys. Gen., with him, for the Commonwealth.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

SPALDING, Justice.

This is a petition for the assessment of damages under G.L. (Ter.Ed.) c. 79, § 14, for a taking of the petitioners' property. The case was submitted on a statement of agreed facts, and the judge, upon the request of the parties, reported the case without decision for determination by this court. G.L.(Ter.Ed.) c. 231, § 111.

The pertinent facts are these. The petitioners were joint owners of two parcels of land in Canton, both of which were taken by the Commonwealth. At the time of the taking the petitioners were engaged in the nursery business and maintained a nursery occupying substantially all of the land taken. The nursery stock was 'planted in the soil in the usual manner of nursery stock.' The stock consisted principally of young trees of varying age and height, some shrubbery, rose bushes and perennials. Before the taking the value of the land apart from the nursery stock, but including a wooden building thereon, was $10,000. 'The value of the nursery stock before the taking so far as it enhanced the value of the land, less the value thereof for the purposes of removal, was * * * $40,000. The injury to the nursery stock caused by the taking was * * * $40,000.' The parcels in question were taken by the department of public works on behalf of the Commonwealth for a limited access highway under G.L. (Ter.Ed.) c. 79, by an order of taking of April 5, 1955, which included the 'trees and structures thereon with the exception of the nursery stock * * * which was not included in the order of taking.'

On April 27, 1955, the petitioners were notified by the Commonwealth that they would have thirty days from May 4 in which to vacate the premises as provided in G.L. (Ter.Ed.) c. 79, § 3, as amended. On May 11 the Commonwealth notified the petitioners that they would be given ninety days from May 4 in which to vacate the premises 'and to remove their personal property and the nursery stock which was excluded in the order of taking.' Pursuant to these notices the petitioner 'removed certain items of the nursery stock and sold the same.'

The underlying question for decision is whether the nursery stock in question was real estate or personal property. It is the Commonwealth's position that it was the latter and was properly excluded from the taking and that the Commonwealth is not answerable in damages with respect to it.

The nature of nursery stock, that is, whether it is personalty or realty, has not been discussed much in our decisions. The fullest discussion will be found in Paine v. Board of Assessors of Town of Weston, 297 Mass. 173, 7 N.E.2d 584, where the question for decision was whether nursery stock was part of the real estate for the purposes of taxation, and it was held that it was. In an illuminating opinion by Field, J., as he then was, it was pointed out that growing trees permanently located on land have always been treated as part of the freehold until severed therefrom, though by a contract of sale of such trees they pass to the purchaser as personalty when severed. This, it was said, was the ordinary rule applicable to things growing on land, though for some purposes "growing crops which owe their annual existence to the cultivation of man are treated as chattels even while still annexed to the soil." 297 Mass. at page 175, 7 N.E.2d at page 586. Continuing the court said, 'Nursery stock, such as is here in question, resembles in some respects growing trees permanently located, and in other respects growing annual cultivated crops. Like such crops nursery stock is cultivated and is not intended to remain permanently on the land. The fact that it is transplanted from time to time is some indication that its location is temporary. Such nursery stock, however, is not an annual product of the soil and in character and appearance it is like growing trees in their early stages.' 297 Mass. at page 176, 7 N.E.2d at page 586.

In support of its contention that the nursery stock in question is personalty the Commonwealth cites Miller v. Baker, 1 Metc. 27, and Whitmarsh v. Walker, 1 Metc. 313, but neither case is authority for that proposition. In Miller v. Baker, the plaintiff by a bill of sale acquired the interest of one Senior, a lessee of the land, in certain nursery stock planted therein by Senior. A sheriff attached the property in an action against Senior, and the plaintiff brought an action of trespass de bonis asportatis against the sheriff. The question for decision was whether damages for taking and converting trees, shrubs, and plants rooted in the soil of a nursery garden, for the purpose of being taken up and sent to market in the spring and autumn of each year, could be recovered in this form of action. It was held that the action could be maintained. In its opinion the court referred to a statement in Lee v. Risdon, 7 Taunt. 188, 191, to the effect that 'trees in a nursery ground are a part of the freehold until severed,' and said, 'And no doubt this is true as between the heir and executor, and would be so also where the entire property in the land and in the trees growing thereon is united in the same person. But we apprehend, in a case like the present, where the owner of the trees had no permanent interest in the soil, but was, at most, using it for the mere purpose of nourishing and sustaining his trees until the proper period should arrive for their removal, the interest in the trees may be considered as separated from the realty, and they may well be denominated personal chattels, and for the wrongful taking and conversion of them by a stranger, the owner may maintain an action of trespass do bonis asportatis.' 1 Metc. at page 33.

In its discussion of this case in Paine v. Board of Assessors of Town of Weston, the court said, 'It is evident from this case that nursery stock growing on land--like growing trees generally--is a part of the real estate when there is no separation of interests, and that such nursery stock is treated as personal property before severance only because of a constructive severance resulting from agreement, express or implied, between...