Shawmut Nat'l Bank v. City of Boston

• Decision Date: 25 June 1875
• Citation: 118 Mass. 125
• Parties: Shawmut National Bank v. City of Boston
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 125

Shawmut National Bank v. City of Boston

Supreme Court of Massachusetts

June 25, 1875

Suffolk. Petition to the Superior Court for a jury to assess damages for the taking of land by the respondent to widen Congress Street in Boston, the petitioner claiming to have a leasehold estate therein. Other petitions were subsequently filed by George D. Howe and others, trustees under the will of George Howe, the owners of the land in fee, and by William F. Lawrence claiming to have a leasehold estate therein.

Trial before Pitman, J., who, by consent of the parties, before verdict, reported the case for the consideration of this court, in substance as follows:

On December 20, 1869, George Howe, being the owner of a parcel of land with a building thereon on Congress Street between Hawes Street and Water Street, leased to the Shawmut National Bank, for fifteen years from January 1, 1870, the lower floor and cellars of the building. [The material provisions of the lease, a copy of which was annexed to the report, are stated in the opinion.]

On July 2, 1869, Howe leased to William F. Lawrence, for ten years from January 1, 1870, three rooms on the second floor of the building by an indenture containing the following among other provisions: "Provided, however, that in case the premises, or any part thereof, shall, during said term, be destroyed or damaged by fire or other unavoidable casualty so that the same shall be thereby rendered unfit for use and habitation, then and in such case the rent hereinbefore reserved, or a just and proportional part thereof, according to the nature and extent of the injury sustained, shall be suspended or abated until the said premises shall have been put by the said lessor, or those having his estate in the premises, in proper condition for use and habitation; and provided, also, that in case the demised premises are so far injured by fire, or other unavoidable casualty, as to become unfit for use and occupation, then the lessor may elect whether to rebuild or repair the same, or to terminate this lease; and in case this lease is terminated, for this cause or for breach of any of the agreements herein contained, between the days whereon the rent herein reserved becomes due, then the lessee agrees to pay proportionate rent for the period of his actual occupation."

On January 1, 1870, the bank leased to Lawrence a room in the first story of the building, being part of the premises demised to it by Howe, for ten years from said date, by an indenture containing the following among other provisions: "If, during the term, the buildings on the premises shall be destroyed or injured by fire, a deduction shall be made from the rent in proportion to the amount of damage; or if the buildings shall be entirely destroyed, then no rent shall be paid after the fire, till the buildings are repaired or rebuilt."

George Howe continued to be the owner of the land until his death in 1871, and since then it has been owned by the trustees under his will, and they and the above named lessees are the only parties interested in the land or building.

On November 9, 1872, the building was wholly destroyed by fire; the pier safes of the bank remained, but a few days after the fire the bank removed its books and papers, and did not afterwards enter upon or occupy the premises.

After the fire, the bank verbally requested the trustees to extend the time allowed the bank for election to repair and restore as provided in the lease, which they verbally agreed to do for a week; within the week the bank verbally notified the trustees that it did so elect to repair and restore the premises demised to it, and thereafter paid the rent reserved by said lease until the taking by the city, in the same manner as it had paid before the fire, which rent was received by the trustees and receipts therefor given as before the fire. Nothing more was ever done by the bank to repair or restore the premises, except to notify its readiness to the trustees as aforesaid, because of the passage of an order by the city council on November 15, 1872, requesting the inspector of buildings to refuse permits for the erecting of permanent buildings in the burnt district until action should be taken by the city authorities in respect to the laying out, altering and widening of streets in that territory; and of another order on December 17, 1872, authorizing the said inspector to issue permits for the erection of buildings on those parts of the burnt district not located on any street where any widening or extension was contemplated.

On May 5, 1873, the street commissioners took and laid out as a public street, for the purpose of widening Congress Street, a portion of the land of Howe's trustees, being a strip measuring 14 20/100 feet on Hawes Street and 12 55/100 on Water Street, and this taking was concurred in by the city council.

The lessees contended that the building could not, after the taking, be restored according to certain plans mentioned in the lease to the bank.

The case was reported for the determination of the rights of the respective parties in matters of law, and for such directions as this court should give.

Petitions dismissed.

T. H. Sweetser & W. S. Gardner, for the bank.

M. Storey, for Lawrence.

G. S. Hale & F. V. Balch, for the trustees.

G. Putnam, Jr., for the respondent.

Morton, J. Ames Endicott, JJ., absent.

OPINION

Morton, J.

To entitle the Shawmut National Bank to maintain its petition it must show that it had an estate or interest in the land taken by the city. At the time of the taking, the land was unoccupied, the building previously standing thereon having been entirely destroyed by fire. In December, 1869, Howe, the owner of the land and building, leased a portion of the building to the bank for the term of fifteen years from January 1, 1870. The decisive question in this case is...