Philadelphia & Reading Coal & Iron Co. v. City of Boston

• Decision Date: 21 May 1912
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: PHILADELPHIA & READING COAL & IRON CO. v. CITY OF BOSTON.

211 Mass. 526
98 N.E. 1067

PHILADELPHIA & READING COAL & IRON CO.
v.
CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1912.

Exceptions from Superior Court, Suffolk County; Charles A. De Courcy, Judge.

Petition by the Philadelphia & Reading Coal & Iron Company against the City of Boston. From a verdict for petitioner, both parties bring exceptions. Exceptions of both overruled.

[98 N.E. 1068]

Robt. [211 Mass. 532]M. Morse and John R. Lazenby, both of Boston, for petitioner.

Thos. M. Babson and Karl Adams, both of Boston, for respondent.

[211 Mass. 527]MORTON, J.

This is a petition for the assessment of damages alleged to have been caused to a leasehold estate belonging to the petitioner by a change in the grade of Chelsea Bridge avenue so called. Chelsea Bridge avenue connects Charlestown and Chelsea. The premises leased by the petitioner are a part of the Mystic Docks so called. The tracks of the Boston and Maine Railroad crossed the avenue at grade to the docks. The change of grade consisted in elevating the avenue twenty-two feet above its former level by means of a viaduct or bridge which permitted the free passage of cars underneath it. The premises occupied by the petitioner abutted on the avenue and were leased by it from the Boston and Maine Railroad corporation for twenty years from May 1, 1890. The lease was dated May 6, 1890. The boston and Maine Railroad held under a lease for ninety-nine years from the Boston and Lowell Railroad corporation. The petitioner's lease was not recorded till December 14, 1900, after the petition in this case was filed, and the respondent alleges that its existence was not known to the public authorities either at the time when the act, St. 1892, c. 374, under which the proceedings for a change of grade were instituted was passed, or at the time when the decree of the superior court authorizing the change was entered, September 6, 1893. The petitioner erected on the premises leased by it an extensive plant for the reception, storage, sale, and shipment of coal. The petitioner contended and introduced evidence tending to show that in 1892 a portion of the premises leased by it was surrendered to the lesor. It was agreed that the rent was reduced from $20,000 per annum to $15,000 per annum, and that that was the amount paid from and after November 1, 1892. Whether there was in fact a release of a part of the demised premises to the lessor was controverted by the respondent. The effect of the release, if there was one, was to leave the petitioner without any access to and from its premises and the highway after the change in grade. There was a verdict for the petitioner, with the amount of which it is dissatisfied. The case is here on exceptions by both parties.

[211 Mass. 528][1][2] We take up first the exceptions of the petitioner. The first exception was to a ruling in regard to the auditor's report. This exception has not been pressed or argued, and we treat it as waived. The ruling was clearly right. Wheeler v. Wheeler, 116 Mass. 297. The next exception was to...