Putnam Furniture Building, Inc. v. Commonwealth

• Decision Date: 06 July 1948
• Citation: 323 Mass. 179,80 N.E.2d 649
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: PUTNAM FURNITURE BUILDING, INC. v. COMMONWEALTH & another.

323 Mass. 179

80 N.E.2d 649

PUTNAM FURNITURE BUILDING, INC. v. COMMONWEALTH & another.

Supreme Judicial Court of Massachusetts, Middlesex.

July 6, 1948

March 1, 1948.

Present: QUA, C.

J., RONAN, WILKINS SPALDING, & WILLIAMS, JJ.

Contract, Covenant Parties. Deed, Acceptance, Deed poll. Real Property, Covenant running with land. Damages, Property taken or damaged by statutory authority. Boston Elevated Railway Company. Metropolitan Transit Authority. Jurisdiction, Proceeding against Commonwealth. Practice, Civil, Venue, Proceeding against Commonwealth.

The promise of support, implied from the Boston Elevated Railway Company's acceptance of a deed poll conveying to it an interest in certain premises for subway purposes and containing a reservation "to the owners of said premises . . . and to their heirs and assigns" of "the right to suitable support upon said subway for the buildings now erected or hereafter . . . erected . . . on the premises," was not a covenant of the railway company did not run with the land, and did not render the company liable for failure to provide such support to a successor in title of the grantor who acquired title to the premises and erected a building thereon long after the company had conveyed its entire interest in the premises and the subway to the Commonwealth. The provision of St. 1906, c. 520 Section 8, requiring the Boston Elevated

Railway Company to pay "all damages to or for property taken or injured by it in any work done in or in connection with any subway construction under authority of this act," did not render the company liable in damages to one who, many years after a taking by the company under c.

520 of an interest for subway purposes in certain premises and after the completion of construction of the subway therein, acquired title to such premises and erected thereon a building which lacked suitable support because of the presence of the subway. Under G. L. (Ter. Ed.) c. 258, Section 2, a petition against the

Commonwealth based upon a claim for more than $2,000, erroneously brought in a county other than Suffolk, could not be transferred to

Suffolk County and must be dismissed without prejudice to the filing of a new petition in Suffolk County.

PETITION, filed in the Superior Court on August 14, 1946. The case was heard by Good, J.

E. O. Proctor, (C.

M. Goldman with him,) for the petitioner.

W. S. Kinney, Assistant Attorney General, for the Commonwealth. J. P. Sullivan, for Metropolitan Transit Authority.

QUA, C.J. This petition was originally brought against the Commonwealth alone. Later, on motion of the petitioner, Boston Elevated Railway Company was added as a respondent. Later still, after the Metropolitan Transit Authority created by St. 1947, c 544, took over the assets of the Boston Elevated Railway Company, the authority was substituted for the railway company as a respondent. St. 1947, c. 544, Section 20.

The allegations of the petition are in substance these: The petitioner is the owner in fee simple of a parcel of land on Massachusetts Avenue in Cambridge. On February 17, 1910, the Boston Elevated Railway Company, acting under St. 1906, c. 520, recorded a taking for itself for subway purposes of an estate in said parcel, reserving to the owners certain rights of support (particularly described in the petition and fully stated later in this opinion). On November 7, 1912, a person named Moore and others, then owners of the land, gave a deed to the railway of the part taken. This deed (described later in this opinion) contained a similar reservation. On May 1, 1920, the railway conveyed to the Commonwealth the said subway, including all right, title and interest of the railway in all land upon which said subway and its appurtenances are located. (See St. 1919, c. 369.) The petitioner has erected upon its parcel a building in conformity with law and with the ordinances and requirements of the city of Cambridge. "As a result of the said taking and the construction of the said subway, suitable support was not afforded for the said building, as was required by the terms of the said taking and provided for by the terms of the aforesaid deed." The petitioner has been put to great expense in providing suitable support for said building and has been damaged in losing the use of the premises while providing support. The petitioner prays that a trial be had and that its damages be determined "in accordance with the statutes in such cases made and provided."

Each of the present respondents insists upon its motion to dismiss the petition on the grounds (1) that no case is stated and (2) that the proceeding was not seasonably brought under St. 1906, c. 520, Section 8. The Commonwealth adds the ground that the proceeding was not seasonably brought under G. L. (Ter. Ed.) c. 258. See c. 260, Section 3A, inserted by St. 1943, c. 566, Section 1. The Metropolitan Transit Authority adds the ground that the proceeding was not seasonably brought under G. L. (Ter. Ed.) c. 79, Section 16, as amended. The petitioner moved that the cause be transferred from the county of Middlesex in which it is pending to the county of Suffolk on the ground that the amount claimed exceeded $2,000. G. L. (Ter. Ed.) c. 258, Section 2. When the three motions just described came on for hearing, it was agreed that copies of the taking by the railway and of the deed from Moore and others to the railway should be treated as if made part of the petition and also, for the purposes of the hearing, that the petitioner acquired its title to the land on April 2, 1946, and that its erection of a building thereon proceeded thereafter and was completed in that year. The trial judge denied the motion to dismiss of the Commonwealth and allowed that of the Metropolitan Transit Authority. He also allowed the petitioner's motion for transfer to the county of Suffolk. He has now reported these interlocutory orders for determination by this court before further proceedings in the trial court. G. L. (Ter. Ed.) c. 231, Section 111.

It is obvious that the parties have adopted a procedure of their own choice, to which, however, there appears no valid objection. All have assented to it, and the trial judge has proceeded in accordance with it, with the result that certain questions of law have been presented to us which ought to be decided before further proceedings are had. In substance the motions to dismiss, taken in connection with the agreement as to facts at the hearing on the motions, are equivalent to demurrers to the petition with a stipulation that the petition be treated as amended so as to include the agreed facts. Without further consideration of the technical correctness of the procedure adopted, we deal with the issues presented. Marsch v. Southern New England Railroad, 230 Mass. 483 , 491-492. Johnson v. Johnson, 303 Mass. 204 , 206.

Both the taking by the railway in 1910 and the deed from Moore and others, the petitioner's predecessors in title, to the railway in 1912 describe the real estate taken or conveyed (following the wording of St. 1906, c. 520, Section 4) as an easement or limited estate or right in land for the location, construction, maintenance and support of a subway with its appurtenances under the act and the use of such subway, with its appurtenances, for all lawful purposes. Each instrument describes the land taken or conveyed as a part or section below the surface particularly bounded by horizontal and vertical planes. Each instrument, after the description of the land taken or conveyed, contains a reservation in these words, "But reserving to the owners of said premises within which the easements or limited estates or rights hereinabove described are taken, and to their heirs and assigns, the right to suitable support upon said subway for the buildings now erected or hereafter altered or erected in conformity with law and with the ordinances [in the deed the word is "ordinance"] and requirements of the City of Cambridge, on the premises in which said easements or limited estates or rights in land are taken, or to the equivalent of such support, provided that there shall be no obstruction to or interference with the use for the purposes of said Act of the part or section in which said easements or limited estates or rights are taken, nor injury to said subway or appurtenances." Each instrument carries a certificate showing its recording shortly after its date.

Both the taking by its terms and the deed by its habendum run to the railway and "its successors and assigns." It seems immaterial which of these instruments is considered determinative of the rights in the land acquired by the railway and those reserved to the landowners, but, if there is any difference, it would seem that, in accordance with the implications of White v. New York & New England Railroad, 156 Mass. 181 , we should proceed on the theory that the deed governs. See Hamlin v. New York & New England Railroad, 160 Mass. 459 , 461.

On the facts appearing the Metropolitan Transit Authority is not liable. The only ground on which it could be contended that this respondent is liable is as a successor by virtue of St. 1947, c. 544, Section 5, to some liability of the railway. That section provides in part that the assets of the railway shall "be and become vested in the authority," and "all the then outstanding indebtedness and liabilities of the company" (railway) shall by virtue of the act be assumed by the authority. But the railway does not appear to have been at that time under any liability to the petitioner. The promise of support implied by the railway's acceptance of a deed poll from the petitioner's predecessors in title was not, under the law of this Commonwealth, a covenant of the railway and does...