Hunt v. City of Boston
| Decision Date | 21 May 1903 |
| Citation | 67 N.E. 244,183 Mass. 303 |
| Parties | HUNT et al. v. CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H. W. Putnam and J. F. Burke, for plaintiffs.
Arthur L. Spring, for defendant.
The plaintiffs are owners of a large tract of land, consisting of marsh, beach, and flats, in Dorchester, Boston which they acquired from a person who was the purchaser at a sale for nonpayment of taxes assessed for the year 1899 to Benjamin F Butler, who was then the owner of the property. Previously to Mr. Butler's acquisition of his title, the former owners made and delivered to the city of Boston an instrument under seal, which was duly acknowledged and recorded, whereby they conveyed to the city, for a valuable consideration, 5,340 squares, more or less, of gravel situated on this lot, and gave to the city, its successors and assigns, full right license, and permission to enter upon this land at any and all times during the period of 10 years from the date of the deed for the purpose of digging out and removing the gravel down to a grade 14 feet above the city base. They also covenanted that they were seised of the land and gravel, and that the same were free from all incumbrances, and that they would warrant and defend the same to the city, and that neither they, nor their heirs nor assigns, would revoke the license to enter upon the land and remove the gravel. The deed to Mr. Butler, and the several mesne conveyances bringing the title from the city's grantors to him, were made with an exception and reservation to the city of the 'gravel, earth, soil, and stones, and rights in relation thereto,' set forth in the deed to the city. All the proceedings relating to the assessment and collection of the tax, including the sale and deed, were legal and proper unless the assessment of a tax to Mr. Butler alone as owner was improper. The tax deed from the collector was made on September 20, 1890, and recorded on September 24, 1890; and the deed to the plaintiffs from the purchaser at the tax sale was dated September 20, 1890, and acknowledged and delivered April 6, 1891, and recorded July 19, 1893. The plaintiffs have regularly paid the taxes since assessed upon the property, which has never been redeemed from the tax sale. The city of Boston, soon after its purchase, began carrying away gravel, and has carried away large quantities since the plaintiffs' acquisition of their title, the quantities and values of which, taken in the different years, appear in the auditor's report. A certain quantity was taken below the grade 14 feet above the city base, specified in the deed. In this action of tort, with counts in trespass, trover, and trespass on the case, the petitioners seek to recover the value of the gravel taken since they acquired their title.
The first questions relate to the validity and extent of the plaintiffs' title. As to its validity, the only question open is whether the tax could be assessed to Mr. Butler alone, in view of the deed held by the city. We think there is no reason for doubt that it was properly assessed. He was the general owner and the holder of the record title, and under St. 1888, c. 390, § 56 (Rev. Laws, c. 13, § 56), even if the city were considered also the holder of a kind of record title, and assessment to one of the general owners of record is sufficient. McLoud v. Mackie, 175 Mass. 355, 56 N.E. 714. The assessment having been properly made, and all the subsequent proceedings having been legal, the plaintiffs acquired a valid title. What is the effect of their deed, and what does their title cover? This question involves an inquiry as to the effect of the deed to the city, and the effect of the tax sale upon such an outstanding interest as was conveyed by that deed.
There is no doubt that an owner of land may make a valid conveyance of an interest in real estate which will give complete ownership of a valuable part of the property, while at the same time he may retain his general ownership of the whole tract for other purposes which do not interfere with the rights which he conveys. Minerals, mines, quarries, and other similar portions of the estate may be conveyed, even in fee while the rest is retained. Chester Emery Co. v. Lucas, 112 Mass. 424; Adam v. Briggs Iron Co., 7 Cush. 361-367; Lamb v. Pierce, 113 Mass. 72. In reference to the interest conveyed to the city, the case of White v. Foster, 102 Mass. 375, is almost identical with the present case. Under the decision in that case, we think it plain that the city acquired an interest in the land, which was either in the nature of a lease for 10 years for uses incident to the removal of the gravel, with a right to appropriate and carry away the specified portion of the property during the term, or a title to the designated part of the substance of the land, with a right to enter and remove it at any time within 10 years. Whichever it was, the right and title would cease any longer to have a separate existence after a sale of the property for a tax assessed upon it to the general owner, except as it might be the foundation of a right of redemption from the sale. In Flax Pond Water Co. v. Lynn, 147 Mass. 31-34, 16 N.E. 742, 745, a case in which the division of ownership related in part to the use of the land itself, and not merely to the structure upon it, Mr. Justice Charles Allen said in the opinion, 'The assessors were not obliged...
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