Galeano v. City of Boston

• Decision Date: 08 March 1907
• Citation: 80 N.E. 579,195 Mass. 64
• Parties: GALEANO et al. v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 64

80 N.E. 579

GALEANO et al. v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

March 8, 1907

COUNSEL

Harrison Dunham, for petitioners.

J. D McLaughlin, for respondent.

OPINION

BRALEY J.

The interest of the petitioners as lessees, and that of the landowner were not commensurate, as their demise covered only a portion, and not the whole of the premises. Because of this diversity, when treated as entire, whatever damages were shown to have been caused to the estate by the lowering of the grade of the street on which it abutted, were to be apportioned between the owners of the respective interests rather than held by a trustee for their benefit. Rev. Laws c. 51, § 15, chapter 48, §§ 17, 18, 20, 22; Edmands v Boston, 108 Mass. 535, 547; Boston v. Robbins, 121 Mass. 453, 456; Stark v. Mansfield, 178 Mass 76, 82; ^[1] Emery v. Boston Terminal Co., 178 Mass. 172, 185, 59 N.E. 763, 86 Am. St. Rep. 473. In the assessment of damages while by Rev. Laws, c. 48, § 22, the estate is to be treated as indivisible, this provision was not intended to mean, that if considered as the sole property of the reversioner no injury appears to have been suffered, then the lessees cannot recover, although if the estates are considered separately the leasehold had been damaged. Providence. Fall River & Newport Steamboat Co. v. Fall River, 187 Mass. 45, 49, 72 N.E. 338. Until determined by the condition of the title shown to exist at the trial it remained uncertain whether section 17 of this chapter or section 20 was applicable. Willard v. Boston, 149 Mass. 176, 178, 21 N.E. 298. If the lease had been coextensive with the fee, the petitioners would have held an estate for years within the meaning of section 17, and would have been within the provisions of section 18, which enacted that notwithstanding damages are to be assessed for the whole property and held by a trustee, who is to pay the income to the tenant for life, or for years, and upon the termination of their estate then to pay the principal to the reversioner, 'any damages special to a separate estate therein * * * shall be awarded in the same proceedings separately.' Boston v. Robbins, ubi supra. It is not to be presumed that a different rule was to be applied under section 22, as both sections dealt with the award or apportionment of damages which may be recovered, even if under one they are held in trust as to damages assessed for the whole property, while under the other they are paid to the parties. If the jury find that any of the parties have not sustained damages they are required to set forth by verdict that as to him no damages are awarded, but while such a finding may include the owner of the fee, the jury are not precluded from awarding damages to other parties according to their interests. There was not only abundant evidence that the market value of the property treated as a single parcel of real estate had been increased, rather than diminished, but the owners neither offered evidence or made any claim for damages upon the ground relied on by the petitioners. The leasehold interest was a distinct independent estate occupied and used as stores, access to which during the progress of the work, lasting from four to five weeks, could have been found either to have been so interrupted as to render their use of little value, or...