Crystal Concrete Corp. v. Town of Braintree
| Decision Date | 08 July 1941 |
| Citation | 35 N.E.2d 672,309 Mass. 463 |
| Parties | CRYSTAL CONCRETE CORPORATION v. TOWN OF BRAINTREE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 14, 1941.
Present: FIELD, C.
J., DONAHUE, DOLAN & RONAN, JJ.
Landlord and Tenant, Construction of lease, Delivery of premises at end of term. Damages, For breach of contract, For tort. Equity Pleading and Practice, Appeal. Words, "Or."
Upon findings by a master respecting a lease of land to a town for the purpose of removing materials for highway construction, "all to a depth and grade line" two feet above high water mark of a certain pond, with an habendum clause giving the town a right to excavate "and otherwise to operate in and about the demised premises, and to leave the surface at not less than a 2% grade or 2 feet above the high water mark of" the pond "excepting those parts . . . now below said grade," the proper interpretation of the lease was that the limit below which the materials could not be removed was a plane beginning at two feet above high water at the edge of the pond and inclining thence upward at a two per cent grade.
A plaintiff appealing only from the final decree in a suit in equity, was entitled to contend that it was unwarranted by facts found by a master, although he had not appealed from an interlocutory decree confirming reports by the master.
A purchaser of land subject to a lease given to a town for the purpose of removing materials for highway construction was entitled to recover from the town the entire damage to the reversion caused by its breach of the lease through excessive removals of materials both before and after he acquired title.
In the circumstances, a conclusion was proper that the market value of sand and gravel, improperly removed by a lessee from a parcel of land having no other commercial value than that of such materials therein, fairly represented the diminution of the market value of the premises and was the proper amount of damages to be awarded the owner of the reversion at the end of the term.
BILL IN EQUITY, by amendment from an action at law begun in the Superior Court by writ dated May 19, 1938.
The master, besides the findings described in the opinion, found, on his interpretation of the lease described in the opinion
In a supplemental report, filed after recommittal, he found that of the foregoing quantity, "7.008 cubic yards were removed prior to January 25, 1933, the date on which the plaintiff acquired title," and that, on that basis, "the defendant has wrongfully removed 25,565 cubic yards, and on the unit basis of fifteen cents per cubic yard . . . the plaintiff has sustained damage by the acts of the defendant on this item in the sum of $3,834.75."
The master also found that the defendant did no further work on the leased premises after May 6, 1936, and abandoned them shortly thereafter.
In his supplemental report, the master found "that to refill the excavated area to the grade and level as determined under my finding and ruling as to the correct interpretation of the lease, 30,678 cubic yards of material are required, . . . [that] the cost of material of the same quality as that excavated by the defendant from the seven-acre area . . . [was] fifteen cents per cubic yard, that the cost of delivery on the seven-acre parcel is fifteen cents per cubic yard per mile of transportation and the cost of grading to rough grade an additional five cents per cubic yard"; and that, if "the plaintiff is entitled to damages based upon the cost of refilling with material of the same quality as that previously excavated by the defendant, then the amount of such damage, computed on the cost of the necessary amount of material, plus transportation and grading cost, is to be substituted for my finding of damages in the sum of $3,834.75"; but that, if, on the other hand, "the plaintiff is entitled to have that portion of the seven-acre parcel wrongfully excavated refilled, but not with material of any specific quality or kind, . . . there is sufficient material for that purpose in the unexcavated four acres on the west side of the property, and . . . the cost of refilling and grading with this material is nineteen cents per cubic yard, the material itself costing nothing and having no commercial value, and that the cost of the operation is to be added to the plaintiff's damages of $3,834.75."
The case was heard by Morton, J., by whose order there were entered an interlocutory decree confirming both the report and the supplemental report, and a final decree "that the plaintiff is entitled to recover of" the defendant "the sum of one dollar as nominal damages for waste to the premises described in the bill suffered or permitted by the" defendant; and "the further sum of . . . $4,918.01 as damages, including interest, suffered by the plaintiff by reason of the conversion by the" defendant "of 25,565 cubic yards of gravel, the property of the plaintiff." Both parties appealed from the final decree only.
R. A. Hunt, for the defendant. R. B. Heavens, for the plaintiff.
The Crystal Sand & Gravel Co. leased to the defendant town on May 16, 1932, for the term of five years, a seven-acre lot of land in the vicinity of Ames Pond in said town, for the purpose of permitting the town to excavate and remove sand, gravel and other materials for highway construction. An individual who held two mortgages upon the leased premises assented to the lease and waived all rights of priority to the lease. The town took possession of the premises soon after the execution of the lease and was engaged in the excavation and removal of the said road building materials when, on January 25, 1933, the plaintiff acquired title through the foreclosure of a mortgage and has since continued as owner of the premises. Excavating operations were conducted by the town principally upon three acres of the demised premises -- the other four acres did not contain material suitable for the purposes of the town -- until May, 1936, when excavating ceased. Thereafter the plaintiff brought an action at law for conversion and trespass, which was changed to a suit in equity in which the bill, as amended, alleges that the town had wrongfully excavated and removed a large quantity of sand and gravel below the grade prescribed by the lease, and had left the premises without smoothing off the surface where the excavating had been performed. The suit was referred to a master whose reports have been confirmed, and a final decree was entered ordering the town to pay nominal damages in the sum of $1 for waste, and a further sum with interest, representing the value of the material that it had wrongfully removed since the plaintiff had become the owner of the demised premises. Both parties appealed from the final decree.
The defendant raises no question but that it is bound by the terms of the lease. Winnisimmet Trust, Inc. v. Libby, 247 Mass. 560 . Gorin v. Stroum, 288 Mass. 6 . It sought in its answer to have the lease reformed upon the ground of mutual mistake, but the master found against the town on that issue and no question on that phase of the case has since been raised. The town does not contend that it is not liable for the value of the material that it removed below the grade designated by the lease, since the plaintiff became the owner of the land, or that the quantities or value of the excavated material appearing in the alternative findings of the master, based upon the location of the grade at the two-foot level above the high water mark and upon the two per cent level, is not correct. The town's sole contention is that it is liable only for the value of materials removed since January 25, 1933, below a horizontal grade two feet above the high water mark of the pond. The plaintiff's sole contention is that upon the facts found by the master it was entitled to more damages than allowed it by the final decree.
The first question for decision is the determination of the grade or level below which the town was not permitted to excavate. The town contends that it could remove all materials that were above a level plane which...
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