Lyford v. City of Laconia

• Decision Date: 06 April 1909
• Parties: LYFORD v. CITY OF LACONIA.
• Court: New Hampshire Supreme Court

72 A. 1085

75 N.H. 220

LYFORD

v. CITY OF LACONIA.

Supreme Court of New Hampshire. Belknap.

April 6, 1909.

Exceptions from Superior Court, Belknap County.

Proceedings by the City of Laconia to condemn land for the enlargement of the public library park and lot. There was a judgment awarding compensation, and Stephen K. Lyford brings exceptions. Overruled.

Appeal, from the assessment of damages by the city council of Laconia for land taken under the power of eminent domain for the enlargement of the public library, park, and lot. The land in question is located at the corner of Main and Church streets, and at the time of the taking was occupied by the Congregational Church Society with a house of public worship. The appellant was awarded $1 damages. His appeal was heard by the county commissioners, who awarded him the same sum. He thereupon claimed a trial by jury. At the close of his evidence, the court (Wallace, C. J.) ruled, subject to exception, that he could recover no more than nominal damages and ordered judgment for him for $1.

The appellant claimed title to the premises as the grandson and only heir of Stephen C. Lyford, who in 1837 gave the Congregational Society a deed of the land in question. In consideration of $100, the deed purports to convey to the Society, their successors and assigns forever, a certain parcel of land, giving the boundaries. Immediately after the description of the land are the following clauses: "Said Society to hold said premises as long as they occupy the same with a house of public worship and no longer, and when they cease to so occupy said premises, then the same shall revert to me and my heirs. To have and to hold the said granted premises, with all the privileges and appurtenances to the same belonging, to said society and their assigns, to them and their only proper use and benefit forever." The deed concludes with the ordinary covenants of the warranty form. The Society at once took possession under their deed and occupied with a house of public worship until after the land was taken by the city. Damages were awarded by the city council to the society, and no appeal was taken.

The appellant offered to prove: (1) That the society could have obtained a lot equally as suitable and desirable as the Lyford lot, removed its church thereto,—and fitted it for occupancy, for less than the sum awarded them as damages and for less than the full value of the Lyford lot; (2) that there had been much discussion about widening Church street opposite the church, and that such widening was necessary, and would require cutting off a considerable portion of one side of the building and its probable removal from the lot. The evidence was excluded, subject to exception.

Jewell, Owen & Veazey and Walter S. Peaslee, for plaintiff. Stephen S. Jewett, for defendant.

PARSONS, C. J. "Whenever any town cannot obtain by contract, for a reasonable price, any land required for public use, such land may be taken, the damages assessed, and the same remedies and proceedings had as in case of laying out highways." Pub. St. 1901, c. 40, § 6. Under this section a town may acquire land for a library lot. Attorney General v. Nashua, 67 N. H. 478, 480, 482, 32 Atl. 852. Following the procedure for the laying out of highways, the selectmen of towns or the body in cities having their authority in the matter are required to notify "the owners of the land" proposed to be taken and all persons whose interests are directly affected, separately notifying "tenants for life or years, and the owners of the remainder or reversion." Pub. St. 1901, c. 45, § 2; Id., chapter 67, §§ 3, 6. If the land is taken, the damages sustained by each owner of the land must be assessed; those of the tenant and remainderman being assessed separately. Pub. St. 1901, c. 67, § 18. There is no provision for the allowance of damages except to owners of the land taken. Eaton v. Railroad, 51 N. H. 504, 508, 12 Am. Rep. 147; Kennett's Petition, 24 N. H. 139, 143.

Acting under the above-cited statutory provisions, the city council of Laconia have taken a tract of land in the city for a park and library lot. The plaintiff, relying upon the statute, has taken an appeal. To sustain his appeal he must bring himself within the provisions of the statute and establish that he was at the time of the taking, within the meaning of the statute, an owner of the land taken, i. e., an owner of the fee, remainder, or reversion, or tenant for life or years. The plaintiff claims as sole heir of Stephen Lyford, under the deed of Stephen to the Meredith Bridge Congregational Society in 1837. That deed purported to convey the land taken in consideration of $100, and is in the ordinary form of a deed of warranty, except that it contains, immediately preceding the habendum in the usual form, the following: "Said society to hold said premises as long as they occupy the same with a house of public worship and no longer, and when they cease to so occupy said premises then the same shall revert to me and my heirs." The society took possession at the date of the deed and continued to occupy the land with their house of public worship until after the land was taken by the city.

Discussion has been had as to the value and character of the title of the society under this deed. The value of the interest of the society is entirely immaterial. They are not parties to this appeal. Whether they have been paid more or less than the amount to which they are legally entitled is not in issue in this proceeding, in which the plaintiff must prevail, if at all, in his own right, and not in the right of the society. The title conveyed the society under Stephen's deed is material only as illustrating or defining the title or right, if any, remaining in Stephen. The grant is to the "society, their successors and assigns forever, * * * to have and to hold * * * to said society and their assigns, to them and their only proper use and benefit forever." The clause above quoted upon which the plaintiff relies, in its full and literal meaning, is in direct conflict with the grant to the society, their successors and assigns, and the similar terms of the habendum. It might perhaps be argued that the clause conflicting with the grant and the habendum should be rejected, and the deed construed as conveying a fee simple absolute, in which, case no right of any description remained in the grantor. However this may be, the deed cannot be construed as conveying a mere right of occupation for church purposes, without rejecting more of the language of the deed. The land, not an easement in it, is conveyed. The society are not restricted in their use of the land. Upon any construction that can be given, the society, so long as they occupied with a house of public worship, might also use the land for any other purpose. They could have devoted it to business or commercial uses in conjunction with their occupation with a house of public worship. But such a construction must-be given the instrument as will, if possible, give effect to all its provisions. The clause in question discloses a purpose that the property conveyed should be held for a religious or pious use—the maintenance of a house of public worship.

The plaintiff offered evidence and contends that the transaction was a gift and not a sale of the land, from which it would appear that the act of Stephen was a donation of the property for a pious use. Such a gift creates a trust in the donees; and the conditions and limitations upon which the trust is created are to be regarded as regulations to guide the trustees, enforceable in a court of equity. Rolfe & Rumford Asylum v. Lefebre, 69 N. H. 238, 45 Atl. 1087. In Methodist Society v. Harriman, 54 N. H. 444, there was a bequest to the society of real estate "to have and to hold the same forever for a minister's home." The court, finding that under the circumstances the land could not be used for the purpose, authorized a sale and the investment of the proceeds in a home for a minister. In Rolfe & Rumford Asylum v. Lefebre land was given to trustees on the express condition that they should hold and apply the said property to a charitable purpose, with no power of sale by them during the term of 99 years. There was also a provision for forfeiture in case of the trustees' failure to faithfully comply with the terms and conditions of the trust, and a gift over to an individual. It was held that, a sale of a portion of the land being for the advantage of the trust, a court of equity had power to authorize it, and that the gift over was void. In a recent case (Ashuelot National Bank v. Keene, 74 N. H. 148, 65 Atl. 826, 9 L. R. A. [N. S.] 758) the words immediately preceding the habendum of the deed, "upon the express condition that said premises shall be forever held and used for the purpose of erecting and maintaining a public library building thereon," did not necessarily operate as a condition subsequent rendering the estate liable to forfeiture, but the conveyance was held to be in trust and not upon condition.

In the present case, treating the conveyance as one to the society as trustees in fee simple, and regarding the language immediately preceding the formal habendum as a declaration of the trust upon which the conveyance was made, full effect is given to all the language of the deed. The society as trustees were bound to use the land for the purposes of the trust Whether, if necessary, a court of equity could have authorized the sale of the land and the investment of the proceeds is not now material. If by lapse of time or for other reasons the trustees could no longer apply the subject of the trust to any purpose within the intention of the donor, their title as trustees would not be defeated, but they would hold the trust property, not for their own benefit, but for the grantor's heirs as a resulting trust. Easterbrooks v. Tillinghast, 5 Gray (Mass.) 17; Hopkins v. Grimshaw, ...