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

• Decision Date: 21 May 1912
• Citation: 98 N.E. 1067,211 Mass. 526
• Parties: PHILADELPHIA & READING COAL & IRON CO. v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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

COUNSEL

Robt. M. Morse and John R. Lazenby, both of Boston, for petitioner.

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

OPINION

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.

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 permitting one of the petitioner's witnesses to testify on cross-examination that since 1895, when the change in grade took place, the price of coal by the Philadelphia and Reading, Delaware and Lackawanna, and Lehigh and Wilkesbarre Companies at all the wharves in Boston had been uniform. The witness had testified on direct examination that it was a recognized part of the coal business in Boston for coal dealers to supply coal to customers by teams driven to the wharves and not belonging to the coal dealers. For the purpose of rebutting an inference which would or might be drawn from this evidence that this branch of the petitioner's business would be affected because such customers could not get to the petitioner's premises as readily as before, it was competent for the respondent to show that the petitioner's yard was so situated with reference to other yards, and the price of coal was such, that there was no inducement for such customers to go to the petitioner's yard. We think that the evidence was rightly admitted.

The next exception was to the admission of evidence offered by the respondent as to the number of tons of coal shipped by the petitioners over the Boston and Maine Railroad during the three years preceding the change of grade and during the three years following it. This evidence was admitted, as the presiding justice instructed the jury, not as bearing upon what business the petitioner did before and after the change of grade, but solely as bearing upon the question whether the railroad facilities were better after the change of grade and in consequence of the change of grade; and whether the market value of the premises occupied by the petitioner, considered with reference to its usefulness for the business for which it was adapted was affected by the change of grade. The jury were expressly told that they must not use the evidence except for this narrow purpose. We think that the evidence was clearly competent for the purpose for which it was thus admitted.

The last exceptions by the petitioner were to the refusal of the presiding justice to give certain rulings that were requested to the effect that a portion of the premises leased to the petitioner had been surrendered by it to the lessor, and to the instructions given by the presiding justice to the effect that the question was one of fact for the jury to pass upon. It appeared, or there was evidence tending to show that there were negotiations between the lessor and lessee, extending over a period of several months, in regard to a surrender of a part of the leased premises and a reduction of the rent. Considerable correspondence relating to the matter was introduced by the petitioner, and Mr. McLeod, who was president of both corporations at the time, deposed that an oral agreement for a modification of the lease and a surrender to the Boston and Maine of a portion of the...