Whitman v. Boston & Maine Railroad , 85 Mass. 133 ( 1861 )

Bigelow, C. J.

The objections made to the right of the petitioners to commence and prosecute this proceeding are untenable.

1. The fact that the real estate taken by the defendants was originally purchased with partnership funds, and for the use and occupation of the firm, was wholly immaterial. The legal title was in the members of the firm as tenants in common; Goodwin v. Richardson, 11 Mass. 469; and the right to recover damages vested in those who were the legal owners of the estate at the time the land was taken. Besides; as there are no joint debts, there is no equitable claim or lien on the damages sought to be recovered in this suit in favor of creditors or the surviving copartner. It is a case, therefore, where the legal and equitable title to the damages is united and vested in the surviving member of the firm and the representative of the deceased copartner. Moore v. Boston, 8 Cush. 274.

2. The position that the land was entered upon by the defendants under an agreement for its purchase, and not taken in the exercise of the right of eminent domain, is not supported by the facts in proof. The defendants could not have relied on their executory contract for the purchase of the land in entering upon it and locating their road over it. At the time of their entry and location they had no title to the estate, nor any right to take possession of it. The owners having then refused to perform their contract for the conveyance of the estate, the defendants were left to their legal and equitable remedies for its breach. The only right which they had to enter upon and take the property was under the power conferred by their charter; and the location filed by them in pursuance of Rev. Sts. c. 39, § 75, is decisive evidence that they acted under the statute and by virtue of their location in taking the land, and not under any supposed or implied assent of the owners.

3.. We are then brought to the consideration of the exceptions to the rulings of the court touching the title of the petitioners to the land and easements for the taking of which damages are claimed in this proceeding. The first raises a question as to the permanent nature of the right claimed by the petitioners in the canal which was filled up by the defendants. On this point we can entertain no doubt. The deed under which they claim conveys a privilege in the canal to hold to them and their heirs and assigns forever. This was sufficient prima facie evidence of a title to a perpetual easement. The deed was presumptive proof that the grantor had such right and title as would render the act done by him operative and valid, and, in the absence of any controlling evidence, authorized the petitioners to ask for damages for the destruction of a permanent easement. Ward v. Fuller, 15 Pick. 185,189. On this point the rulings of the court were not open to any valid objection.

4. The next question arising on this branch of the case involves an inquiry into the right of the petitioners to an easement in the space immediately adjoining the wall of the canal, over which a platform had been erected resting on piles. As it is admitted that the petitioners have acquired no title by adverse use or occupation, the extent of their right must depend on the construction of the deed from the Boston Mill Corporation under which their title to the premises in controversy was derived. Qn looking at the terms of this grant, it appears that the land conveyed was described as a lot on the canal, and was bounded southwesterly thereby, “ being canal lot number two as laid down on a plan,” to which reference is made. Taking this description in connection with the plan, it is clear that the premises conveyed were bounded by the canal, and did not extend beyond it. If there were any doubt of this on the language of the grant, it is manifest from an inspection of the plan, which is to be deemed a part of the description, that the intent was to convey a lot bordering on the line of the canal, and to exclude any land comprehended within the limits of the canal itself. But it is claimed by the petitioners that the right to erect the platform is conveyed by the clause in the deed which gives to the grantees “ a privilege in said canal,” and a permission to “drive piles against such parts of the wall as have projected into the canal, from which land ties may be fastened to prevent any further pressure outwards.” We cannot think that this is a reasonable interpretation of this part of the deed. The grant of a privilege in the canal was intended only to give to the grantees a right to use it for navigation, and as adjacent to the wharf lot for the usual purposes to which a water way might be properly appropriated. The permission to drive piles and to fasten them by ties to the wharf was designed only to enable the grantees to support the wall against the canal, which by the deed they agreed to maintain, and "to prevent it from pressing further into the canal and thus obstructing free passage through it. But beyond this no right or easement was granted; certainly none under which the- petitioners could claim to erect and main tain a permanent platform projecting over the surface of the canal. Besides; it seems to have been overlooked at the trial that the permission to drive piles extended only to that part of the wall which had pressed outwards and projected into the canal at the time of the grant, and not to the entire space over which the platform was built when the premises were taken by the defendants; so that if the claim of the petitioners could be supported at all, it could not embrace the area covered by the platform as shown on the plan. • We are therefore of opinion that the court erred in instructing the jury that the petitioners, by the terms of the grant under which their title was derived, had any right to damages for the destruction of an easement in the space occupied by the platform wharves.

5. It was contended by the defendants that the original grant from the Boston Mill Corporation did not include the projection in the wall which existed at the date of the deed, but was confined to the line of the wall as originally built, so that the defendants had no title beyond a straight line drawn from one corner of the lot granted upon the canal to the other. But the words of the deed, taken in connection with the plan, do not warrant such an interpretation. The premises granted were bounded by the canal, that is, by the canal as it was then practically used and constructed, and as laid down on the plan. This clearly comprehended all the land lying northerly of the wall. So it must have been understood by the parties, because by reference to the plan it will be seen that the part which projects into the canal by reason of the irregularity in the wall is laid down as part of lot number two.

6. On the question of damages, it seems to us that the instructions of the court were deficient in not being responsive to the third prayer submitted by the counsel for the defendants, which contained an accurate statement of the rule of law applicable to the claim of the plaintiff for the peculiar damages sustained by him in taking his land, and the deduction to be made for benefits which accrued to him therefrom, as distinct from those received by other owners of land in that neighborhood, whose land was not taken. The instructions given were correct as abstract propositions, but were deficient as stating only general rules and principles, instead of being adapted to the nature of the case, which was developed by the evidence concerning the situation and peculiar character of the property taken by the respondents. It would be very difficult for a jury to make a proper application of a rule of law in a case like the one at bar, if their attention was not called to its practical operation on the claim made by the petitioners for damages. It was especially necessary that, in estimating the damages done to the land of the petitioners, they should have been instructed that they were to deduct from the value of the land taken the amount of the benefit which accrued to the petitioners by the increase of the value of the residue of the lot, although other lots in the immediate vicinity bordering on the canal had received a similar benefit by the location of the railroad over them. Otherwise the jury might be led to think the case fell within the rule laid down in the decision which was read to them by the court in Meacham v. Fitchburg Railroad, 4 Cush. 291, in which it was decided that no deduction was to be made from damages caused by the location of a railroad by reason of a benefit received by the person whose land was taken, in common with other owners of real estate in the vicinity whose land was not taken for the construction of the road. The omission to state the true distinction on this point, in connection with the refusal to give the third instruction asked for by the defendants, left the case without any adequate directions to guide the jury in a just and correct assessment of damages.

7. The testimony relating to the nature, extent and amount of the business done by the firm of Bartlett & Co. on the premises in controversy was objectionable, as tending to introduce an element of damage which was not proper for the consideration of the jury. The petitioners could not recover in this proceeding for the damage done to their business, but only for the value of the land. Boston & Worcester Railroad v. Old Colony & Fall River Railroad, 12 Cush. 605. Nor are we able to see how a particular use of the land by the firm could show its market value. With the qualification with which this evidence was submitted to the jury, we are inclined to the opinion that it was incompetent and ought not to have been considered in forming an estimate of the damages.

Fkcceptions sustained.