Walker Ice Co. v. American Steel & Wire Co.
| Decision Date | 17 May 1904 |
| Citation | 70 N.E. 937,185 Mass. 463 |
| Parties | WALKER ICE CO. v. AMERICAN STEEL & WIRE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Arthur P. Rugg and William C. Mellish, for plaintiff.
Herbert Parker and George A. Gaskill, for defendant.
This is an action of tort to recover damages for the alleged destruction by the defendants of a crop of ice on Salisbury Pond, in Worcester, which the plaintiff was preparing to harvest. There was a verdict for the plaintiff, and the case is here on exceptions by the defendants to the admission and exclusion of evidence, and to the instructions that were given and refused. The plaintiff contended that the ice was destroyed by the turning into the pond by the defendants of hot water from its condensers. The defendants admitted turning in hot water, but denied that the destruction of the ice was caused thereby. The verdict must, however, be taken to settle this issue against them.
Salisbury Pond is an artificial pond. It and the premises on the shore occupied by the plaintiff and its predecessors formerly belonged to Stephen Salisbury, Sr., and on his death, in 1884, passed to his son, Stephen Salisbury, Jr., the present owner. The pond was originally established and is principally used to furnish water for manufacturing purposes. But for upwards of 30 years the plaintiff and its predecessors, first as tenants of Stephen Salisbury, Sr., and then of the son have occupied the premises on the shore of the pond for the ice business, and have cut and taken ice from the pond in connection therewith. Formerly this tenancy was under written leases. The last written lease that was put in ebidence by the plaintiff was one from Stephen Salisbury, Sr., to Benjamin Walker, in 1878, for five years. Upon its expiration it was extended in writing for three years more upon the same terms and conditions. The extension expired in 1886, and since then the plaintiff and its predecessors have occupied the premises and cut and taken ice upon the same terms and conditions as contained in the lease of 1878, except that each was to give the other six months' notice of an intention to terminate the tenancy. The lease of 1878 bounded the premises in part on the shore of the pond, and provided that 'the premises are to be used for a dwelling house and other buildings for the ice business as at the present time.' It also contained a provision that the 'said Salisbury doth also lease to the said Walker the right to cut and take ice from Salisbury's Pond as is done at this time during the term of this lease,' and a further provision that, in addition to the stipulated rent, the lessee should 'deliver to the lessor as much ice as should be required for two families during the term of this lease as is done at this time.' The plaintiff has paid the rent, and has done all the other things required. As we construe this lease, it demised the premises on the shore of the pond, with the privilege of cutting and taking ice as appurtenant thereto. The rent reserved was not apportioned between the premises and the right to cut and take ice, but consisted of a round sum, and this, taken in connection with the situation of the premises on the shore of the pond, and the provision that they were to be used for the ice business, renders the construction which we have given to it the only reasonable one. See Huntington v. Asher, 96 N.Y. 604, 48 Am. Rep. 652. Strictly speaking, a right to cut and take ice is perhaps more in the nature of a profit ¶ prendre than an easement, though it comes within the definition of an easement which was given by Chief Justice Shaw in Ritger v. Parker, 8 Cush. 145, 147, 54 Am. Dec. 744, and which was quoted with approval by the court in Owen v. Field, 102 Mass. 90, 103. But whether regarded as an easement or as a profit a prendre, the right was capable of being annexed to the premises which were demised (see Huntington v. Asher, supra), and must be considered, we think, according to the true construction of the lease, as having been so annexed. Upon the termination of the written lease the occupancy did not cease, but the relation of landlord and tenant continued between Mr. Salisbury and the parties in possession, the only difference being that, instead of being in under a written lease and for a fixed time, they were in by parol and as tenants at will. In holding over, whether by mutual consent and agreement or otherwise, they held the same premises with all the rights and privileges that had been annexed to them, and upon the terms and conditions as specified in the written lease, except so far as modified by mutual arrangement. Dimock v. Van Bergen, 12 Allen, 551; Weston v. Weston, 102 Mass. 514, 518; Webber v. Shearman, 3 Hill, 547. They were not in any sense licensees, but were tenants at will. And if the landlord had deprived them of the right to cut and take ice, it would have constituted a substantial interference with their right of quiet enjoyment, if not an eviction. Brown v. Holyoke Water Power Co., 152 Mass. 463, 25 N.E. 966, 23 Am. St. Rep. 844; Case v. Minot, 158 Mass. 577, 33 N.E. 700, 22 L. R. A. 536. The occupation has been a continuous one since the expiration of the lease, and the successive changes rendered necessary by death and the taking in of new partners, and the change from a partnership to a corporation, have not interrupted the tenancy, and have all been agreed to by Mr. Salisbury. If the case had stopped here, there can be no doubt, we think, that the plaintiff had such possession of the ice that the defendants would be liable for the damage done in causing its destruction by turning hot water into the pond.
But the case does not stop here. The defendant claims under a written lease from Mr. Salisbury, of what it asserts is the pond and the land under it, to the Washburn & Moen Manufacturing Company, to whose rights it is admitted that the defendant has succeeded; and it contends that under this lease it had the right to turn in hot water, and that if the plaintiff has a right to cut and take ice, which it denies, the right is subject to its right to flow, store, and use the water of the pond for manufacturing purposes. It also contends--and this is the ground on which it denies the plaintiff's right to cut and take ice--that the plaintiff derives any right or privilege that it has to cut and take ice from the reservation to Mr. Salisbury contained in the lease, that that created an easement in gross in favor of Mr. Salisbury which could only pass by grant, and that, having no grant, the plaintiff was only a licensee, and, not having reduced the ice to possession at the time when it was destroyed, has no cause of action against the defendant. This renders it necessary to consider the lease under which the defendant claims. If the construction contended for by the defendants is correct, it is manifest that the conclusion for which they contend must follow. But we do not think that the construction for which they contend is correct.
Omitting what is not essential in the consideration of the case before us, what was demised by the lease to the Washburn & Moen Company was 'that tract of land lying on the westerly side of said Grove street as shown on plan recorded herewith * * * comprising the area known as Salisbury Pond, to be used for flowage purposes only, * * * with the exclusive right to flow, store and use water in said pond by means of its dam and flashboards at a height,' etc. Later in the lease is the following reservation: 'The said lessor for himself, his heirs, executors, administrators and assigns reserves the exclusive right to cut, harvest, sell and store for sale ice from Salisbury Pond as at present exercised by B. Walker & Co. during the lease and its extension.' The lease was dated January 31, 1890, and for 25 years from July 1, 1888. There had been an earlier lease from Mr. Salisbury, Sr., to the Washburn & Moen Company, which was offered in evidence by the defendant, and excluded, subject to its exception. This lease was dated the 1st day of July, 1868, and expired on the same day as that under which the defendant now claims took effect. What was demised by that lease was 'all the water in Salisbury Pond on the north side of Grove Street * * * to be used for manufacturing purposes * * * subject to the reservation hereinafter expressed.' The reservation, so far as material, was as follows: 'The said Salisbury reserves to himself his heirs and assigns during the term of this lease the right to take ice from the pond as heretofore.' The Washburn & Moen Company was and is a large manufacturing establishment which the defendant operates, and the water is used for steam and condensing purposes.
The first question is whether the defendants had the right under their lease to turn hot water into the pond, as it is found that they did. We do not think that they had. No doubt, if Mr. Salisbury had seen fit to do so, he could have leased the pond and the land under it to the Washburn & Moen Company, or to the defendants, so as to give them the right to turn in hot water, and have made the right to cut and take ice subject thereto, leaving the plaintiff and its predecessors to such remedy, if any, as they might have against him. But it does not seem to us that he has done so. The lease contains an express reservation to himself, his heirs and assigns, of the right to cut and take ice as at present exercised by B. Walker & Co. The earlier lease that was offered and excluded contained a similar reservation. The effect of these reservations is to rebut any intention on his part to give the Washburn & Moen Company a right in the waters of the pond, or in the pond itself, superior to the right to cut and take ice. And the reference...
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