Old South Ass'n v. Codman
| Decision Date | 01 March 1912 |
| Citation | 97 N.E. 766,211 Mass. 211 |
| Parties | OLD SOUTH ASS'N v. CODMAN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Arthur D. Hill and Richd. H. Wiswall, for appellants.
Richard W. Hale and Frank W. Grinnell, for appellee.
The plaintiff, being the owner in fee of certain open land next to the Old South Meeting House on Washington street in Boston and the predecessors in trust of the defendants being the owners of an adjacent large office building then in process of construction and since completed, made an indenture by which the plaintiff granted to the trustees 'an easement of uninterrupted light and air over the premises hereinafter described above the level of the grass plot on the northerly side of the tower of the Old South Meeting House and the right to project over not exceeding five feet of said premises' with cornices and other things. A stipulated rental was reserved to be paid 'without any reduction on account of any future taking of the above-mentioned premises by the city of Boston or other public authority for any purpose; * * * but if the whole of the premises over which the said easements are hereby extended or the major part thereof is taken by the city of Boston or other public authority, or if the substantial enjoyment of the easements hereby created be impaired either by any structure placed on any portion of said premises taken by the city or other public authority pursuant to and in connection with such taking, or otherwise,' then there should be a reasonable reduction in the rent. The premises were described by metes and bounds and distances as in ordinary conveyances.
Thereafter a taking was made by the transit commission for the city of Boston. It was not in any aspect the taking of an entire fee of the premises. Treating the earth and air above it as a solid, it was the taking of a series of prisms or prismatic sections which varied in vertical thickness between the extremes of 50 feet and 24.1 feet. Described with reference to the surface of the earth in the open space, over which the easement extended, the highest plane of any prism was 10 feet above it and the lowest not over 40 feet below it. The right to suitable support for the prisms and structures which might be placed within them, by soil or otherwise, was taken below the lower planes of the prisms; otherwise, that below was left to the plaintiff. To the plaintiff as owner was definitely reserved the exclusive use of all areas above the upper planes of the prisms. Certain rights of support and of use for various purposes in common with the public use were preserved to the plaintiff.
The total area of land made subject to the easement of light and air in favor of the defendants' building was 2,156 square feet. Of this, as a result of the taking, the city had exclusive surface rights in approximately 457 square feet and there remained to the plaintiff exclusive surface rights in 471 square feet. Over the remaining surface of 1,228 square feet a right of way, as foot passages, was taken and the plaintiff retained the right of use in common with the public. It has not been argued that the form of taking is not in accordance with the statute or is unconstitutional. Boston v. Talbot, 206 Mass. 82, 91 N.E. 1014.
It is not now claimed that there has been any substantial interference with the enjoyment of the defendants' easement. The finding of the superior court is conclusive against such a contention. An examination of the evidences discloses no reason to disturb this finding. Jennings v Demmon, 194 Mass. 108, 80 N.E. 471. The controversy is whether 'the major part' of 'the premises' over which the easement extends has been taken. 'Premises' is a word which may have different meanings dependent upon its connection and the object to which it is applied. It oftentimes describes the fee of land. But it may signify something less extensive, if the context seems to require it. [1]
In order to determine the sense in which it was used in this indenture, it is important to bear in mind the subject about which the parties were contracting and their general purpose. The predecessors of the defendants as trustees were constructing a large office building with stores on the street floor in the congested part of Boston. The thing secured to them by the indenture was an easement of light and air over a tract of land on one side of their building. There was in contemplation of the parties the possibility that the ownership in fee of the plaintiff in the servient estate might be lessened by some exercise of the power of eminent domain. The indenture is dated December 20, 1902, while St. 1902, c. 534, authorizing the Washington street subway, was approved June...
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