Weeks v. Grace

• Decision Date: 26 February 1907
• Parties: WEEKS et al. v. GRACE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 296

80 N.E. 220

WEEKS et al. v. GRACE.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1907

The covenants in the deed were as follows:

'And I, the said grantor, for myself and my heirs, executors and administrators, do covenant with the said grantees, and their heirs and assigns, that the above-described premises are free from all incumbrances made by me except as aforesaid, and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the said grantees and their heirs and assigns against the lawful claims and demands of all persons claiming by through, or under me except as aforesaid, but against none other.'

Knowlton C.J., and Hammond, J., dissenting.

COUNSEL

Francis Burke and Thos. J. Kenny, for plaintiffs.

Charles W. Bartlett, Elbridge R. Anderson, and Arthur T. Smith, for defendant.

OPINION

BRALEY J.

The restricted covenants against incumbrances, and of warranty contained in the defendant's deed under which the plaintiffs derived their title are independent, and a breach of either would give a distinct cause of action, although the building and maintaining of a public sewer through a part of the granted premises did not constitute a breach of the first covenant, as the action of the public authorities was neither caused nor permitted by the grantor. Estabrook v. Smith, 6 Gray, 572, 577, 66 Am. Dec. 445; West v. Spaulding, 11 Metc. 556; Cole v. Lee, 30 Me. 392, 397. But the covenant of warranty was broken by the constructive eviction caused by its maintenance, if the easement taken by eminent domain is derived from, and supported by the title of the defendant. Comstock v. Smith, 13 Pick. 116, 23 Am. Dec. 670; Raymond v. Raymond, 10 Cush. 134, 140; Smith v. Richards, 155 Mass. 79, 82, 28 N.E. 1132. It therefore becomes important to consider if upon its exercise the public acquired in the land a derivative or an independent title. In Pollard v. Hagan, 3 How. (U. S.) 212, 223, 11 L.Ed. 565, where the right of the federal government in the soil of the states carved out of the Louisiana Purchase is considered, Mr. Justice McKinley defines this function as follows: 'The right which belongs to the society or to the sovereign of disposing in case of necessity and for the public safety of all the wealth contained in the state is called the eminent domain.' By force of this power, back of all private titles lies the eminent domain as an inherent attribute of organized government. Perry v. Wilson, 7 Mass. 393; Goodyear Shoe Machinery Co. v. Boston Terminal Co., 176 Mass. 115, 57 N.E. 214. And whenever the Legislature adjudges it expedient the property of the citizen may be appropriated for public use. The taking may be by legislative act, or the right may be delegated. Talbot v. Hudson, 16 Gray, 417, 424; In re Petition of Northampton, 158 Mass. 299, 33 N.E. 568; Abbott v. New York & New England R. R. Co., 145 Mass. 450, 453, 454, 15 N.E. 91; Com. v. Boston Terminal Co., 185 Mass. 281, 70 N.E. 125. Ordinarily where land is condemned for this purpose the quality of the estate is defined either by the paper taking, or its extent may be measured by the object to be accomplished. It may be a fee or an easement. Harback v. Boston, 10 Cush. 295; Page v. O'Toole, 144 Mass. 303, 10 N.E. 851; Titus v. Boston, 161 Mass. 209, 36 N.E. 743; Newton v. Perry, 163 Mass. 319, 321, 39 N.E. 1032; Newton v. Newton, 188 Mass. 226, 228. But whatever the interest appropriated the owner must be fully compensated. Const. Mass. pt. 1, art. 10; Whitman v. Nantucket, 169 Mass. 147, 149, 47 N.E. 611; Hellen v. Medford, 188 Mass. 42, 45, 73 N.E. 1070, 69 L. R. A. 314, 108 Am. St. Rep. 459. This provision of our Constitution which either by direct enactment, or by reference to similar provision in existing laws is usually embodied in the statute by which the right is exercised or delegated, while an inseparable incident forms no part of the power itself. The Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403, 406, 25 L.Ed. 206; United States v. Jones, 109 U.S. 513, 518, 3 S.Ct. 346, 27 L.Ed. 1015; Cooley, Const. Lim. (7th Ed.) 813; 2 Dillon, Mun. Cor. (3d Ed.) § 590. See 1 Thayer, Cas. Const. Law, 953, note. Nor does the right to compensation affect the validity of the condemnation where the landowner either assents, or allows his claim to be barred by limitation. Haskell v. New Bedford, 108 Mass. 208, 214. If the state takes property by escheat or forfeiture it succeeds to the title of the former owner, and claims under him. 4 Kent. Com. (14th Ed.) 427, note 'b'; Casey v. Inloes, 1 Gill (Md.) 430, 39 Am. Dec. 658; Colgan v. McKeon, 24 N. J. Law, 566, 575. And this is so when an execution is levied by sale of real estate. The purchaser by operation of law gets the debtor's title, and nothing more, and it follows that if the wife purchases, under the sheriff's deed she acquires no title, which then remains in the husband, as in contemplation of law the deed is a mere conveyance from her husband to herself. Stetson v. O'Sullivan, 8 Allen, 321. In the foreclosure of a mortgage, or under an assignment in bankruptcy a purchaser at the sale, or the assignee can get no greater estate than the mortgagor conveyed, or the bankrupt owned. These familiar instances are illustrative of derivative titles where those who purchase take by grant, or succeed by assignment, and acquire no greater interest than that held by those under whom they claim. But if the principle is applicable to real property seized in the exercise of the right of eminent domain then if only a bare title is taken which later is found to be invalid because a mistake has been made in ascertaining the ownership the condemnation must be repeated, or the public can be ousted by the true owner. Goodyear Shoe Machry. Co. v. Boston Terminal Co., ubi supra. The language used by this court when discussing the nature of the proceedings indicates more than a transfer of an existing title. Thus it was said in Brown v. Lowell, 8 Metc. 172, 178, when speaking of the adjudication of the mayor and aldermen in laying out a way over private property 'the latter appropriates the land to the public, and divests the right of the owner to the exclusive use and possession of it from the time it is passed.' See, also, Com. v. Boston & Lowell R. R. Co., 12 Cush. 254, 258; Drury v. Boston, 101 Mass. 439, 440; Monongahelah Navigation Co. v. United States, 148 U.S. 312, 324, 13 S.Ct. 622, 37 L.Ed. 463. The probability of such an interference if a mistake has been made in the identity of the owner or owners is repugnant to the nature and scope of the right itself. To avoid such complications and to make the right immediately effective the appropriation of private property for a public use is strictly a proceeding in rem, and has been so defined by our decisions. Edmands v. Boston, 108 Mass. 535, 544; Appleton v. Newton, 178 Mass. 276, 281, 59 N.E. 648; Lancy v. Boston, 185 Mass. 219, 70 N.E. 88; Sweet v. Boston, 186 Mass. 79, 71 N.E. 113.

The power when exercised acts upon the land itself, not upon the title, or the sum of the titles if there are diversified interests. Upon appropriation all inconsistent proprietary rights are divested, and not only privies but strangers are concluded. Clark v. Worcester, 125 Mass. 226, 231; Brigham v. Fayerweather, 140 Mass. 411, 413, 5 N.E. 265. See, also, The Avon, 1 Brown Adm. (U. S.) 170, Fed. Cas. No. 680; Certain Logs of Mahogany (Thomas Richardson, Claimant), 2 Sumn. (U. S.) 589, Fed. Cas. No. 2,559. Thereafter whoever may have been the owner, or whatever may have been the quality of his estate he is entitled to full compensation according to his interest and the extent of the taking, but the paramount right is in the public, not as claiming under him by a statutory grant, but by an independent title. Boston Water Power Co. v. Boston & Worcester R. R. Corp., 23 Pick. 360, 393, 394; Dingley v. Boston, 100 Mass. 544, 559; Emery v. Boston Terminal Co., 178 Mass. 172, 184, 59 N.E. 763, 86 Am. St. Rep. 473; Beekman v. Saratoga & Schnectady R. R. Co., 3 Paige (N. Y.) 45, 73; Todd v. Austin, 34 Conn. 78; Harding v. Goodlett, 3 Yerg. (Tenn.) 53, 24 Am. Dec. 546; Wier v. St. Paul & T. F. R. R. Co., 18 Minn. 155 (Gil. 139); West River Bridge Co. v. Dix, 6 How. (U. S.) 507, 529, 12 L.Ed. 535. See, also, League v. Texas, 184 U.S. 156, 22 S.Ct. 475, 46 L.Ed. 478; Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 17 S.Ct. 718, 41 L.Ed. 1165.

This conclusion is further supported by the analogy of the sale of land for unpaid taxes where the purchaser which may be the city or town gets a new unincumbered title in fee by force of the lien of the taxing power, which cuts under all incumbrances or qualifying estates. Rev. Laws, c. 13, § 48; Harrison v. Dolan, 172 Mass. 395, 398, 52 N.E. 513; Emery v. Boston Terminal Co., 178 Mass. 172, 184, 59 N.E. 763, 86 Am. St. Rep. 473; Hunt v. Boston, 183 Mass. 303, 306, 67 N.E. 244; Abbott v. Frost, 185 Mass. 398, 400, 70 N.E. 478; Hefner v. Northwestern Life Ins. Co., 123 U.S. 747, 751, 8 S.Ct. 337, 31 L.Ed 309; Textor v. Shipley...