Proprietors of India Wharf v. Central Wharf

• Decision Date: 08 May 1875
• Parties: Proprietors of India Wharf v. Central Wharf and Wet Dock Corporation
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 504

Proprietors of India Wharf v. Central Wharf and Wet Dock Corporation

Supreme Court of Massachusetts

May 8, 1875

Suffolk. Petition under the Gen. Sts. c. 134, § 49, to compel the respondent to bring an action to try his alleged title to a parcel of land in Boston. The answer denied that the petitioner ever had been in actual possession of the land described in the petition, taking the rents and profits thereof; and averred that the respondent owned a part of the land in fee, and claimed a right or easement in common with the petitioner over the residue.

At the hearing before Ames, J., the following facts appeared: The land in question was formerly a dock lying between the wharves of the petitioner and the respondent, which had been filled by the city of Boston in 1870. On May 15, 1873, by an indenture, the petitioner leased to the city of Boston the land in question, until May 1, 1875, for the rent of one dollar, and the city covenanted to quit and deliver up the premises to the lessor at the end of said term. Annexed to the indenture was an instrument under seal, executed by the respondent corporation, whereby, for the consideration of one dollar, it leased, demised and let to the city "all its right, title, interest and estate in and unto the premises described by the above written instrument" until May 1 1875. The petitioner has never received the nominal rent fixed in its lease to the city. The lease by the respondent was delivered with the lease of the petitioner.

On this evidence, the judge ordered the petition to be dismissed, and reported the case for the consideration of the full court.

Petition dismissed.

S Bartlett & S. S. Shaw, for the petitioner.

C. A Welch & M. Williams, Jr., for the respondent, were not called upon.

Gray C. J. Morton & Endicott, JJ., absent.

OPINION

Gray

In order to maintain a petition under the Gen. Sts. c. 134, § 49, to compel the bringing of an action to try title to real estate, the petitioner must have substantially and practically the exclusive possession. It is not sufficient that he has a mere formal or nominal possession which he can without disadvantage abandon and himself bring an action against the adverse claimant. Nor is it sufficient that he might be treated as a disseisor at the election of the latter; for any person asserting a title to land may be so treated at the election of the rightful owner; and to give such a...