Cornell-andrews Smelting Co. v. Boston & P.R. Corp.
| Decision Date | 21 June 1913 |
| Citation | 102 N.E. 625,215 Mass. 381 |
| Parties | CORNELL-ANDREWS SMELTING CO. v. BOSTON & P. R. CORPORATION. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
See also, 209 Mass. 298, 95 N.E. 887.
The petitioner demanded damages resulting to him from the discontinuance of a private way within the location of the railroad corporation in the process of the abolition of a grade crossing. The land leased by the petition was part of a tract containing about ten acres owned by Clarence L. Watson. The way ran over land of one Wolfenden to County street which ran substantially parallel to the railroad tracks to South Main street and the only connection the petitioner's tract had with the streets was by means of the private way known as Maple street. The deed executed by Watson and Newell referred to in the opinion conveyed land to the railroad corporation contiguous to its location and the grantors reserved to themselves the right of way over the railroad which they had acquired under grant by deed executed by Richard D. Manchester, the right of way being for farm purposes. William E. Hartwell, a witness, called by the petitioner, testified that he erected the buildings for the petitioner and he was allowed to testify as to the fair market value of them. Defendant's ninth and tenth requests are as follows:
'The failure on the part of the petitioner to comply with the laws of this commonwealth relating to foreign corporations, St 1884, c. 330, and acts amendatory thereof, prevented it from acquiring an interest in the property as a tenant for ten years.
'By the failure on the part of the petitioner to comply with the laws of this commonwealth relating to foreign corporations St. 1884, c. 330, and acts amendatory thereof, and with St. 1895, c. 157, and acts amendatory thereof, the petitioner was prevented from acquiring at the time the building was erected and the machinery affixed as trade fixtures and at any later time the right to remove the buildings and the said machinery.'
The witness Andrews had been secretary of the Cornell-Andrews Smelting Company.
John W. Cummings and Chas. R. Commings, both of Fall River, for petitioner.
Jas. W. Burke, of Worcester, for intervening petitioner (the lessor).
John L. Hall and Jos. Wentworth, both of Boston, for respondent.
John L. Hall, of Boston (Edmund S. Kochersperger, of Boston, of counsel), for respondent upon motion for new trial.
This case is somewhat troublesome to deal with by reason of the number and complexity of the questions presented and the difficulty of picking out decisive points. But that difficulty has been considerably and needlessly increased by the course of the respondent in setting out the testimony by question and answer instead of giving the substance of the evidence in a narrative form. This is a reprehensible method of alleging exceptions. In Ryder v. Jenkins, 163 Mass. 536, 40 N.E. 848, it was held that a bill of exceptions in which all the testimony was stated at length without any attempt at abridgment was rightly disallowed. The language of the statute (R. L. c. 173, § 106) has been modified since that decision, but it would be hard to say that its meaning had been materially altered. See the cases collected in Com. v. New York Central & Hudson River R. R., 206 Mass. 417, 419, 92 N.E. 766, 19 Ann. Cas. 529. In Clemens Electrical Manuf. Co. v. Walton, 173 Mass. 286, 52 N.E. 132, 53 N.E. 820, there had been an attempt to abridge the evidence. Moreover, all the requests for rulings made by the petitioner, the respondent and the intervening petitioner, are inserted in extenso, without stating what ones were given and what were refused, but the court is left to ascertain these important question from an examination of the charge and of the colloquies between the judge and the different counsel, which are also reported in full. As was said in Burt v. Merchants' Ins. Co., 115 Mass. 1, 16, such a course cannot be too strongly condemned. No objection however has been made to the exceptions, by motion to dismiss or otherwise, and we have considered them.
1. We find no error of law in the rulings made as to the boundaries of the land leased to the petitioner, and as to the petitioner's being entitled to some right of way to South Main street over the respondent's railroad. The land leased to the petitioner was bounded easterly by the respondent's land, though called its lay-out, and did not purport to be bounded by the original lay-out of the respondent's railroad. This is too manifest to need discussion. The deed given by Watson and Newell to the respondent reserved to those grantors the right of way over the railroad. This must have been intended and understood to include, indeed it necessarily did include, the right to pass over all the width of the respondent's land, including that conveyed by the deed in question. Otherwise, the reservation would have had no effect. That was the right which Watson enjoyed and could transfer to the petitioner; and it sufficiently appears that it was the way actually used by the petitioner over the railroad.
The right of way in the other direction was described in the deed from Manchester to Wolfenden as 'a right of open way from my land easterly of said river [Ten Mile river] through said lane to County street.' At this time and prior thereto, according to the testimony of Manchester, a witness for the respondent, the land to which this way was appurtenant, which afterwards passed to Watson, and a part of which constituted the land leased to the petitioner, had no structures upon it and was used exclusively for agricultural purposes. So far as appeared, that part of the way to South Main street which crossed the respondent's railroad was created in 1836, by the stipulation in the deed of Leprilete Sweet to the respondent for a pass way 'over the said road for farming purposes.' This gave a right to use that 'pass way' for farming purposes only; and the petitioner, as to that part of the way which crossed the original location of the railroad acquired no right to use it for any other than farm purposes. Atwater v. Bodfish, 11 Gray, 150; Parks v. Bishop, 120 Mass. 340, 21 Am. Rep. 519; Baldwin v. Boston & Maine R. R., 181 Mass. 166, 168, 63 N.E. 428; Nye v. Swift, 190 Mass. 143, 147, 76 N.E. 652; Allan v. Gomme, 11 Ad. & El. 759; Henning v. Burnett, 8 Exch. 187. There was not here a general grant or reservation of an unrestricted right of way, as might have been the case if the question had arisen under language like that in the deed from Manchester to Wolfenden, 'a right of open way.' Had there been in the deed from Sweet to the respondent such a reservation of an unrestricted right of way, the weight of authority is in favor of the contention that the way would have been available to the owners of the dominant estate for any changed use to which that estate afterwards might reasonably be put. Johnson v. Kinnicutt, 2 Cush. 153, 157; Blood v. Millard, 172 Mass. 65, 51 N.E. 527; Gorton-Pew Fisheries Co. v. Tolman, 210 Mass. 402, 412, 97 N.E. 54, 38 L. R. A. (N. S.) 882; Randall v. Grant, 210 Mass. 302, 96 N.E. 672; Abbott v. Butler, 59 N.H. 317; Arnold v. Fee, 148 N.Y. 214, 42 N.E. 588; Gunson v. Healy, 100 Pa. 42. Accordingly, so far as the way to County street is concerned, we find no error in the rulings made at the trial. We do not overlook the fact that there was evidence of a more unrestricted use of the way over the railroad; but the purpose for which this evidence was admitted was narrowly limited, and we cannot treat it as tending to show that any increased right had been gained by prescription. The petitioner's lease did purport to give to it a right of way over the railroad; but that could pass no greater right than belonged to Watson himself. In the absence of evidence that any increased right had become vested in the petitioner, the jury should have been instructed that the petitioner had no right to use that portion of the way which crossed the railroad for any other than farming purposes.
This ruling was made at first; but the judge afterwards withdrew it, and instead thereof read to the jury some of the language used in the opinion of this court reported in 202 Mass. 585, 597, 89 N.E. 118. That language, however correct upon the facts then appearing, was inapplicable to the issue as presented at this trial. For this reason the respondent's exceptions must be sustained.
2. The contention that the damages should be assessed according to the provisions of R. L. c. 48, §§ 17, 18, and not in the manner prescribed by sections 20-22 of the same chapter, we do not consider to be open to the respondent. It has no concern with the division of the damages between the lessor and the lessee. Proprietors of Locks & Canals v. Nashua & Lowell R. R., 10 Cush. 385, 387; Providence, Fall River & Newport Steamboat Co. v. Fall River, 187 Mass. 45, 50, 72 N.E. 338. As was said by Wells, J., in Edmands v. Boston, 108 Mass. 535, 547, these questions 'are important only as between the several petitioners.'
3. The judge rightly ruled that the measure of damages was not what it would cost to buy land to construct a way, or the cost of building a way out of the petitioner's premises. That was a circumstance to be considered; but it was not as matter of law the measure of the damages. This is settled by the former decisions of this case. 202 Mass. 585, 599, 89 N.E. 118 et seq.; 209 Mass. 298, 314, 315, 95 N.E. 887. The instructions as to this point and as to the respondent's second request were adequate and correct. The judge ruled also that the petitioner, being a foreign corporation, was not an inhabitant of Attleborough, and had no right to apply to the selectmen of that town to lay...
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