Cornell-andrews Smelting Co. v. Boston & P.R. Corp.

• Decision Date: 19 June 1911
• Citation: 95 N.E. 887,209 Mass. 298
• Parties: CORNELL--ANDREWS SMELTING CO. v. BOSTON & P. R. CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

209 Mass. 298

95 N.E. 887

CORNELL--ANDREWS SMELTING CO. v. BOSTON & P. R. CORPORATION.

Supreme Judicial Court of Massachusetts, Bristol.

June 19, 1911

COUNSEL

John W. Cummings and Charles R. Cummings, for petitioner.

Choate Hall & Stewart, for respondent.

OPINION

LORING J.

At the trial consequent upon the decision of this court in Cornell-Andrews Smelting Co. v. Boston & Providence Railroad Corporation 202 Mass. 585, 89 N.E. 118, the respondent asked for a ruling in the words used by us in describing the rules of law by which the new trial then ordered was to be governed. This the presiding judge refused to give without modification, and the respondent took an exception. The questions of law involved in this ruling were not discussed in the former opinion. In view of that and of the earnest argument made by the learned counsel for the petitioner we have considered the matter anew.

The second trial was had on the lessee's petition against the railroad. The rruling requested by the respondent was in these words: 'The value of the lessee's option of purchase, provided for in the lease, can neither enhance nor diminish the petitioner's claim, as damages are assessed for injury to its interest as of the date of the taking.' This was the eighth ruling asked for by the respondent. Coupled with it was the respondent's fourteenth request for a ruling in these words: 'The jury are not to assess total damages to the land leased and the buildings and fixed machinery therein to this petition, but are limited to damages for the remainder of the term, which is approximately six years. The jury are to consider that all damages to the leasehold property beyond the six-year term, if any, have been or will be recovered by the lessor.' The judge refused the fourteenth and gave the eighth, 'with the addition, 'except so far as it may add to the value of the leasehold interest.” He told the jury that they were first to determine 'the fair market value of the leasehold interest which this petitioner had in that property, including, of course, the improvements made upon it, including any additional value that may have been given to it, if there was an additional value on account of the option, on account of the privilege of buying it at the end of ten years if it saw fit to do so,' and then to decide how much that value of the leasehold interest had been impaired by the order for splitting grades which cut off access to Maple street and put the factory under the new embankment which was 27 feet high at the easterly end of the petitioner's premises and 21 feet at the westerly end of them.

Our former decision went on the footing that the damage done to the lessor's reversionary interest (1) in the land leased to the petitioner and (2) in the buildings and machinery put on the land by the lessee at its expense, had been finally disposed of by the separate verdicts which the lessor had recovered, or at any rate by those verdicts coupled with a statement of the petitioner's counsel made in argument before this court and acceded to by the respondent's counsel. We shall have to deal later on with this statement and concession. In other words the former opinion went on the footing that although originally the damage done in the case at bar had been done to land owned in part by a lessor and in part by a lessee (whereby a case within R. L. c. 48, §§ 20-23, was presented), yet when this case was sent back for a new trial by the decision in 202 Mass. 585, 89 N.E. 118, the amount due to the lessee was the only matter left to be determined, as was the case in Pegler v. Hyde Park, 176 Mass. 101, 57 N.E. 327. But although it was then assumed that the only matter left to be determined was the damage due to the lessee, the question whether the judge was or was not right in telling the jury in the case at bar that they could consider the option of purchase given in the lease to the lessee in determining the value of its leasehold interest depends upon the principles upon which compensation is to be made when land taken or damaged by the exercise of the power of eminent domain is owned by a lessor and lessee.

There is no better way of arriving at a full understanding of that question than by starting at the beginning and following down the course of our decisions and of the statutes enacted by the Legislature. There is the more reason for doing that here because in the case at bar the proceedings have not been kept in the channel prescribed by these enactments of the Legislature.

It was held in Ellis v. Welsh, 6 Mass. 246, 4 Am. Dec. 122, that 'any person having an interest in the land [taken for a public way], either as lessee for years, tenant for life, or for any greater estate of freehold, as also he in reversion or remainder, is an owner within' St. 1786, c. 67, § 1, giving to the owner of land taken for a highway compensation for damage thereby done. To have the damage done to the tenant in such a case determined by one jury and that done to the reversioner determined by another manifestly led or was likely to lead to results which varied when they should have been the same, even in the simplest of cases, for example, in case of a farm in the country. But there are cases where the miscarriage of justice likely to result is still greater if the damage done to the tenant or tenants and that done to the landlord are determined in separate actions. Take the case put be the commissioners of the Revised Statutes, where there are 'a number of tenants for different terms of years, on conditions creating very different rights and liabilities and exposing them to different degrees of injury.' Commissioners' Report, 153. Or take as an example the case presented in Patterson v. Boston, 23 Pick. 425, where the front wall of a building fronting on Hanover street in the city of Boston and let out in parts to several tenants was taken down in widening that street and never replaced.

To remedy these evils the commissioners of the Revised Statutes suggested 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 for a public way, any one of such parties may on application cause 'all the other parties' interested to 'become parties to the proceedings.' And in such a case the jury 'shall first find, and shall set forth in their verdict, the total amount of the damages sustained by the owners of such land and buildings, estimating the same as an entire estate and as if the same were the sole property of one owner in fee simple; and they shall then apportion the said total amount of damages among the several parties whom they shall find to be entitled, in proportion to their several interests and to the damages sustained by them respectively; and they shall set forth such apportionment in their verdict.' The commissioners further recommended that if any person having an interest in land or buildings as aforesaid who had been summoned in should neglect to appear and become a party to the proceeding, he should be forever barred from making any application for damages. Commissioners' Report, c. 24,§§ 42-47. And see note to the same at page 153. This recommendation was adopted by the Legislature, became Rev. St. 1836, c. 24, §§ 48-53, and since then, with some amendments, has been the law of the commonwealth. Gen. St. 1860, c. 43, §§ 53, 58; Pub. St. 1882, c. 49, §§ 20-25; R. L. c. 48, §§ 20-24.

The commissioners' statement of the reasons for this suggestion was in these words: 'The provisions of these six sections, which are in the nature of a bill in equity, are intended to afford a more convenient means of doing justice to all parties in such cases.'

By St. 1851, c. 290, it was provided that 'Whenever any person shall have a claim for damages * * * having different or separate interests in the said property, so that an estate for life or for a term of years in the same belongs to one person, and the remainder or reversion in fee belongs to another,' an entire sum shall be assessed without apportionment, and shall be paid over to a trustee upon trust to pay the income of the trust fund to the tenant for life or for years and on the termination of that estate to pay the principal to those entitled to the reversion. This (with an amendment made by St. 1883, c. 253) is now R. L. c. 48, §§ 17-19. For cases within these sections, see Boston v. Robbins, 121 Mass. 453; Turner v. Robbins, 133 Mass. 207. See, also, Edmands v. Boston, 108 Mass. 535, 547. All other cases are within the provision originally adopted in Rev. St. c. 24, §§ 48-53, pursuant to the recommendation of the commissioners (now R. L. c. 48, §§ 20-24). See Edmands v. Boston, 108 Mass. 535; Willard v. Boston, 149 Mass. 176, 21 N.E. 298; Providence, Fall River & Newport Steamboat Co. v. Fall River, 187 Mass. 45, 72 N.E. 338; Galeano v. Boston, 195 Mass. 64, 80 N.E. 579; Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 202 Mass. 585, 89 N.E. 118.

The purpose of these statutes regulating the method of procedure where a lot of land taken for a highway is owned by more than one person, is twofold: First, to have the interdependent rights of all settled at the same time; and secondly, to establish the principle that the amount of damages to be paid where the same land is owned by several persons shall be determined as if it had been owned by one person in fee. This was stated in terms in the original act (Rev. St. c. 24, § 50), and is stated in terms in the present act (R. L. c. 48 § 22). It is this feature of the act which has been most often insisted upon by the court. In Edmands v. Boston, 108 Mass. 535, 544, Wells, J., said: 'The situation of the estate and the manner of its occupation are...