Proprietors of Locks v. Boston & M.R.P.

• Decision Date: 25 May 1923
• Citation: 139 N.E. 839,245 Mass. 52
• Parties: PROPRIETORS OF LOCKS AND CANALS ON MERRIMACK RIVER v. BOSTON & M. R. P.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

245 Mass. 52

139 N.E. 839

PROPRIETORS OF LOCKS AND CANALS ON MERRIMACK RIVER

v.BOSTON & M. R. P.

Supreme Judicial Court of Massachusetts, Middlesex.

May 25, 1923.

Exceptions from Land Court, Middlesex County; C. T. Davis, Judge.

Writ of entry by the Proprietors of Locks and Canals on Merrimack River against the Boston & Maine Railroad. The court refused to give any of the seven rulings requested by demandant, and entered judgment for the tenant and demandant excepts. Exceptions overruled.A. R. Tisdale, of Boston, for tenant.

F. Rackemann and H. M. Davis, both of Boston, for demandant.

RUGG, C. J.

This is a writ of entry to recover three parcels of land in Lowell, leased by the defendant to the Boston & Lowell Railroad Corporation by three leases, dated respectively in 1837, 1840, and 1845. It is the contention of the demandant that the leases have expired by their own limitations. The plea was nul disseisin, with specification of defense that the tenant claims to hold possession by virtue of the leases; that the Boston & Lowell Railroad Corporation was on the 1st of December, 1919, consolidated with the tenant, the Boston & Maine Railroad; and that since that consolidation the possession of the tenant is by virtue of its being in part, although under another name, the Boston & Lowell Railroad Corporation, the original lessee.

The demandant is a corporation established by St. 1792, c. 13, and supplementary acts. The tenant is a corporation established by St. 1843, c. 90, and supplementary acts, and by statutes of Maine, New Hampshire, and New York. The Boston & Lowell Railroad Corporation was established by St. 1830, c. 4, with reservation of right by the commonwealth to purchase all its property after the expiration of 10 years from the opening for use of the railroad, subsequently by St. 1832, c. 87, extended to 20 years. It operated its railroad between Lowell and Boston until 1887, when by authority of statute it leased all its franchises and property to the tenant, which thereafter operated that railroad as a part of its system.

The Boston & Lowell Railroad Corporation, together with several other railroad corporations, termed for convenience ‘subsidiary companies,’ were authorized to consolidate with the tenant, the Boston & Maine Railroad, by Sp. Acts 1915, c. 380, and acts in amendment thereof, and the acts of other states. Pursuant to that act the several railroad corporations became consolidated and joined with the tenant, the Boston & Maine Railroad forming one corporation under that name. An agreement to that end was executed by all the corporations, including the Boston & Lowell Railroad Corporation. Brown v. Boston & Maine Railroad, 233 Mass. 502, 511, 124 N. E. 322.

Each of the leases here in issue contained an habendum clause and a covenant. The covenant clause has no decisive significance upon the issue here depending, but resort may be had to it for light upon the meaning of the habendum clause.

The habendum clause shows that the leases are for an indefinite term. They are to continue until the happening of one of several events and then to cease. The crucial event may happen at any time, or it may never happen. The leases, therefore, may never come to an end. The effect of the words used was to convey a base fee. It is enough to say without further discussion that the case upon this point is governed by Jamaica Pond Aqueduct Corp. v. Chandler, 9 Allen, 159;First Universalist Society v. Boland, 155 Mass. 171, 29 N. E. 524,15 L. R. A. 231;Flynn v. Caplan, 234 Mass. 516, 126 N. E. 776; Institution for Savings in Roxbury v. Roxbury Home for aged Women, 139 N. E. 301.

A closer analysis of the leases is necessary to determine exactly their force and effect. The words, ‘to have and to hold to said party of the second part the said premises during their continuance as a corporation,’ are fitly chosen to convey a fee to a corporation. The corporate existence of the lessee has been continued and its corporate meetings held notwithstanding the consolidation of it with the tenant. The words next following, namely, ‘and while they continue to be the sole owners of said railroad,’ can best be considered after the rest of the paragraph has been interpreted. Next occur the words expressive of the rent to be paid and the time for its payment. These need not be discussed in detail, because nothing essential truns upon them. It is not contended that there has been any breach in these particulars.

Then follow the words plainly expressive of the condition on which the leases shall terminate:

‘And in case said party of the second part shall fail and neglect to pay said rent for the space of one year after the same shall become due or in case said railroad should become the property of the commonwealth, then in either of these events, the said premises shall revert to and become the proper estate of said party of the first part.’

These are words avowedly stating in precise...