Goodyear Shoe MaChinery Co. v. Boston Terminal Co.

• Decision Date: 17 May 1900
• Citation: 176 Mass. 115,57 N.E. 214
• Parties: GOODYEAR SHOE MACHINERY CO. v. BOSTON TERMINAL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 115

57 N.E. 214

GOODYEAR SHOE MACHINERY CO. v. BOSTON TERMINAL CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 17, 1900

COUNSEL

Solomon Lincoln, E. P. Howe, and W. A. Sargent, for appellant.

Samuel Hoar, and Woodward Hudson, for appellee.

OPINION

HOLMES C.J.

This is a petition to recover damages for the taking of a leasehold estate by the respondent. It comes here by appeal from a judgment for the respondent upon demurrer. Shortly stated the facts are as follows: On January 5, 1897, the respondent being already the owner by purchase of the reversion of the land in question, filed a location under the authority of St 1896, c. 516, purporting to take in fee (by the right of eminent domain) a tract of land including the premises. Three days later, on January 8th, it served a notice on the petitioner that, whereas the lease was terminable by the lessor upon such a taking, it elected to terminate it. The lease provided that, 'in case the premises, or any part thereof, shall be taken for any street or other public use, or by the action of the city or other authorities, * * * then this lease and the term demised shall terminate at the election of the lessors, or those having their estate in the premises.'

We are of opinion that the judgment appealed from was right. Of course, any valid taking of the whole premises would put an end to the lease (O'Brien v. Ball, 119 Mass. 28), and therefore the provision quoted must not be construed too literally in its application to the present case. The object is that which is pointed out in Munigle v. City of Boston, 3 Allen, 230, 232, and the meaning is that the landlord can terminate the right of the tenant to share in the damages. See, further, Burbridge v. Railroad Co., 9 Ind. 546. Probably, if the clause had not dealt with the taking of a part as well as of the whole, and had referred only to a taking of the whole, it would have stipulated absolutely that the tenant's rights should end without requiring an election by the landlord. The election is inserted with reference to a partial taking. In this case the election was sufficiently manifested by the notice.

Without inquiring too curiously whether the taking affected the respondent's title otherwise than by taking the lease and ending any possible unknown outstanding claims, we have no doubt that it was a taking within both the letter and the spirit of the proviso in the lease.

It is suggested that, however it might have been if the land had been taken by a third person, when the taking is by the landlord, the landlord is bound by the covenant for quiet enjoyment. But the sovereign power to take by eminent domain is not an incumbrance, and the exercise of the power is not a breach of any of the ordinary covenants. Ellis v Welch, 6 Mass. 246, 250, 252; Parks v. City of Boston, 15 Pick. 198, 205. These cases, especially the earlier, advert, it is...