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

• Decision Date: 24 June 1909
• Citation: 89 N.E. 118,202 Mass. 585
• Parties: CORNELL-ANDREWS SMELTING CO. v. BOSTON & P. R. CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 585

89 N.E. 118

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

Supreme Judicial Court of Massachusetts, Bristol.

June 24, 1909

COUNSEL

J. W Cummings and P. E. Brady, for petitioner.

Choate Hall & Stewart, for respondent.

OPINION

BRALEY, J.

The petitioner, which held a lease of a part of the premises, and the landowner having severally brought suits against the respondent and the town to recover damages caused to their respective estates by the discontinuance of a private way at a grade crossing, and by the taking of land for a public way laid out, and built pursuant to the decree, the cases were tried together, in accordance with the provisions of Rev Laws, c. 48, §§ 20, 23. The joinder, for the convenience of trial however, having worked no change in the statutory liability of the respondents, which remained several, and not joint, each party was privileged under Rev. Laws, c. 176, § 29, to challenge four jurors without assigning any cause. Stone v. Segur, 11 Allen, 568, 570. If a reference to the evidence, rulings and instructions in the other cases is necessarily contained in the exceptions, the only remaining questions before us relate to the petitioner's title, and the measure of damages recoverable against the railroad corporation. The petitioner's estate having consisted of the land described in the lease, with the rights of way referred to as appurtenant, it becomes important to ascertain the location of the passageway leading from the demised premises to the cart path. The cart path, with the connecting way on the west, being in existence at the date of the lease, is referred to without further description, but the passageway providing the only roadway from the leased premises is described as starting from the northerly line of the lot with a width at least of 12 feet, and thence running over other land of the lessor to the cart path about 150 feet distant, which it was to join at a point within 200 feet from land of the railroad abutting on the east. The termini, and maximum width, having been fixed, with the choice conferred on the lessee of determining at what point within the 200 feet the passageway should take its departure, the subsequent location by user, in which the jury could find the lessor had acquiesced, operated as a definite assignment from which without his consent there could be no deviation. George v. Cox, 114 Mass. 382; Stetson v. Curtis, 119 Mass. 266; Lipsky v. Heller, 199 Mass. 310, 318, 85 N.E. 453; Bass v. Edwards, 126 Mass. 445.

In the enjoyment of the leasehold, after reaching the cart path the petitioner could proceed to a highway either on the west by crossing the bridge over the river as the most convenient route, or on the east over the railroad at grade. It was within the authority of the commissioners to prescribe what alterations were necessary to do away with the crossing, and their decree is declared by the statute to constitute a taking of whatever land or other property they decide may be required to carry out the changes. Rev. Laws, c. 111, § 152, as amended by St. 1902, p. 352, c. 440, § 3. See, also, St. 1905, pp. 350, 352, c. 408, §§ 2, 4. By the scope of the decree a permanent public easement in the entire area within the defined layout of the street with the accompanying slopes was taken. Doon v. Natick, 171 Mass. 228, 50 N.E. 616. But if the fee remained in the lessor the passageway, or outlet, being within the metes and bounds, even if not specifically named, was discontinued and extinguished when the work had been entered upon. Central Wharf v. India Wharf, 123 Mass. 567, 570; Googins v. Boston & Albany Railroad Co., 155 Mass. 505, 30 N.E. 71; Doon v. Natick, 171 Mass. 228, 50 N.E. 616; Scholefield v. Boston & Maine Railroad Co., 173 Mass. 387, 390, 53 N.E. 914; Lancy v. Boston, 186 Mass. 128, 133, 71 N.E. 302. The street as constructed having rendered the use of the same level in transit impossible by the extreme difference in grade, an essential element of the private easement had been destroyed, and there remained no concurrent use not inconsistent with the rights of the public, which the petitioner might exercise, as in Clark v. Worcester, 125 Mass. 226, 231. See, also, Denniston v. Clark, 125 Mass. 216, 221, and Como v. Worcester, 177 Mass, 543, 59 N.E. 444. After extinguishment of the way, the lessee possessed no enabling rights under the lease to require the lessor to assign another way connecting the leasehold with the cart path. The covenant to assign equally convenient ways refers to ways then in existence to which specific reference is made, and a way by necessity did not arise, even if the jury found that by the course of events the petitioner, having been left in a cul de sac with the opening closed, was for a period cut off from any available method of ingress and egress necessary for the commercial use of its estate. A way of this nature comes into existence at the time of the grant, which has omitted to provide access to the estate conveyed. Oliver v. Pitman, 98 Mass. 46; Morse v. Benson, 151 Mass. 440, 24 N.E. 675. And it is only when a way is obstructed or closed by the acts of the owner of the servient estate that the owner of the dominant estate may depart from the located way and pass over other portions of the land. Leonard v. Leonard, 2 Allen, 543. Upon the establishment of the passageway the petitioner obtained an uninterrupted line of communication, which as between itself, the lessor, and the railroad corporation formed an indivisible easement. The leasehold accordingly should be considered as abutting on a continuous way, whose location was clearly defined, and could not be changed without a reassignment. Killion v. Kelley, 120 Mass. 47, 52.

The rulings requested and refused as to the scope of the petitioner's appurtenant rights, and the effect of the decree, as well as the instructions to the jury to which the petitioner excepted, were erroneous. Inasmuch as there must be a new trial at which the questions may again arise, we take up the exceptions to the rulings and instructions as to damages. The eviction not having been caused by the acts of the lessor, there had been no breach of the covenant for quiet enjoyment, as the lessee's occupation of the premises was subject to the exercise of the right of eminent domain. Weeks v. Grace, 194 Mass. 296, 298, 80 N.E. 220, 9 L. R. A. (N. S.) 1092. The lessee's remedy therefore is under the provisions of Rev. Laws, c. 111, § 153, as amended by St. 1903, pp. 524, 525, c. 478, §§ 1, 2. The freehold and leasehold being incommensurate, and no part of the reversion having been taken, if as to this respondent damages in gross were awarded for injury to the entire tract, caused by the closing of the cart path at the crossing, the apportionment to the lessee would not measure the damages suffered in the extinguishment of the passageway in which the lessor had no inherent interest. If to avoid this objection the course pursued at the trial is followed, and for the assessment of damages the freehold is treated as severable, even then the injury to the reversion does not differ in kind from the injury to the remaining land, as the lessor made no claim that the buildings and fixed machinery formed a part of his estate. The rule of apportionment under Rev. Laws, c. 48, § 20, where there are leasehold interests, even if held applicable in Providence, Fall River & Newport Steamboat Co. v. Fall River, 187 Mass. 45, 50, 72 N.E. 338, to proceedings for the abolition of grade crossings, does not deprive a lessee from recovering compensation independently of the lessor, if a settlement has been made with him, or where the damages to the leasehold are distinct and separate from those suffered by the landowner. Pegler v. Hyde Park, 176 Mass. 101, 103, 57 N.E. 327; Galeano v. Boston, 195 Mass. 64, 80 N.E. 579. See Harris v. Howes, 75 Me. 436.

But while the damages to the leasehold should have been assessed separately, no exceptions were taken to the instructions which seem to have been in conformity with the tenth request. By the verdict in his favor, however, which apparently has not been set aside, the lessor, having received compensation for injury to the reversion, has ceased to have any pecuniary interest in the present action, and no question of apportionment will arise at the second trial. It will then be open under the allegations in the petition, for the petitioner to recover the difference between the fair market value of the leasehold, including the...