Lodge v. COLUMBIA PACKING COMPANY

• Decision Date: 29 May 1958
• Docket Number: Civ. A. No. 57-190-F.
• Citation: 162 F. Supp. 483
• Parties: Ellerton A. LODGE, Henry G. Lodge, Mary C. Lodge and Elinor L. Gillespie v. COLUMBIA PACKING COMPANY.
• Court: U.S. District Court — District of Massachusetts

162 F. Supp. 483

Ellerton A. LODGE, Henry G. Lodge, Mary C. Lodge and Elinor L. Gillespie v. COLUMBIA PACKING COMPANY.

Civ. A. No. 57-190-F.

United States District Court D. Massachusetts.

May 29, 1958.

Howard S. Whiteside, Parkman, Robbins & Russell, Boston, Mass., for plaintiffs.

Joseph T. Fahy, Peabody, Brown, Rowley & Storey, Boston, Mass., for defendant.

FRANCIS J. W. FORD, District Judge.

Plaintiffs, owners of certain real estate on Blackstone Street in Boston, leased said premises to defendant corporation under a lease which, as extended, ran until February 28, 1952. On January 30, 1951, the Department of Public Works acting on behalf of the Commonwealth of Massachusetts made an order of taking by eminent domain of the entire leased premises for highway purposes, entry on the premises was made on February 16, 1951, and the order of taking and certificate of entry duly recorded. Although formally ordered to vacate the premises, defendant continued to occupy them under an oral agreement with representatives of the Commonwealth, remaining in undisturbed possession until after February 28, 1952.

Plaintiffs bring this action for rent under the terms of the lease in the amount of $2,933.37 for the period from April 1, 1951, to February 28, 1952, and for the additional sum of $478.40, being the excess over $966 of plaintiffs' real estate taxes for the year 1951, which the lease provided the lessee was to pay. Despite demand by the plaintiffs, defendant has never paid these sums. There is a further claim for $200 for additional rent for the period from March 1, 1948, to February 28, 1949, during which defendant paid rent of only $216.67 monthly instead of $233.34 monthly as provided in the lease. Defendant concedes that it owes this $200.

Plaintiffs' claim against the Commonwealth of Massachusetts for damages for the taking of their property was settled by agreement. Defendant filed no petition for damages in connection with the taking and no payment was ever made to it. Defendant paid no rent to the Commonwealth for the period after the taking when it continued to occupy the premises and no such rent has ever been demanded.

The general rule is that the taking by eminent domain of the entire leased premises, as distinguished from a taking of only part of the leased property, terminates the lease along with the lessor's title, and releases the lessee from liability for rent accruing subsequent to the taking. 52 C.J.S. Landlord and Tenant § 483, p. 244. This is clearly the law in Massachusetts, where the rule has been stated, "But, even without eviction by, or attornment to, the holder of the new title, the liability to pay the rent reserved ceased with the termination of the plaintiff's estate during the term subsequent to the making of the lease and the entry of the defendant under it." O'Brien v. Ball, 119 Mass. 28, 30. The liability for rent thus ceases with the termination of the lessor's estate and does not, as plaintiffs here contend, continue until the possession of the lessee is disturbed. The rule relied upon by plaintiffs that a tenant in quiet possession cannot question his landlord's title, Connolly v. Kilcourse, 285 Mass. 398, 189 N.E. 199, does not apply here where lessee does not question the lessor's title at the beginning of the lease but relies only on the fact that it has been terminated during the period of the lease. Lamson v. Clarkson, 113 Mass. 348.

The case of W. M. McDonald Company, Incorporated, v. Hawkins, 287 Mass. 71, 191 N.E. 405, cited by plaintiffs is clearly distinguishable. There the leased property consisted of floors in two separate buildings, demised in a single lease. Only one of the buildings was taken by the city, and it is quite clear that the court proceeded on the basis that this constituted a taking of only a part of the entire demised premises and for that reason did not terminate the liability for rent.

Plaintiffs, however, contend that regardless of this rule, the parties to a lease may agree that the obligation to pay rent shall continue even after a taking of the whole property and that in this case they have done so by a provision in the lease which reads:

"This Lease Is Made On Condition that in case the whole or any substantial part of the demised premises or of said building be destroyed or damaged by fire or any unavoidable casualty, or be taken, damaged, or destroyed by

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