Norwich & Worcester Railroad v. City of Worcester , 147 Mass. 518 ( 1888 )

W. Allen, J.

The petitioner in 1885 took certain land, under the St. of 1884, c. 157, for a new station and yard in the city of Worcester, and before the land was fitted or used for railr.oad purposes it was injured by reason of the lowering of the grade of an adjoining street. To this petition for damages it is objected that the petitioner had no greater interest in the land than that of lessor. In 1869 the plaintiff made a lease for one hundred years of its railroad, including the old station and yard at Worcester, to the Boston, Hartford, and Erie Railroad Company, whose successor is the New York and New England Railroad Company. After the new station buildings, tracks, and yard were completed, they were taken possession of by the New York and New England Railroad Company, and the old location was discontinued. The question is, whether the land came under the operation of the lease at the time when it was taken by the petitioner, or when it was fitted for use and taken possession of by the lessee as part of the railroad.

The lease was of the railroad of the lessor, extending from Worcester to Allyn’s Point in Connecticut, “together with all the lands on which said railway is or shall be located within said terminal points, and which are connected with the uses of said railway,” and all rights and privileges connected, and all tracks, depot grounds, buildings, etc., “ now used and belonging, and to be used or belonging, or in any wise appertaining to said road,” etc. Another provision of the lease relates to á change of the road and station grounds in Worcester, or at any other place, and provides for the purchase of land for that purpose, and for the cost of the new line, grounds, and buildings, and that “ the new track, grounds, and buildings shall be included under this indenture of lease, for the same time and upon the same terms and conditions that the railway is herein leased.”

It seems clear that it was not the intention of the parties that land purchased for the construction of a new station and yard should come under the lease as soon as purchased. The lease was of a completed road, ready to be used by the lessee. The road-bed, buildings, and all the leased property, were to be maintained and kept in repair, and replaced when destroyed by the lessee; the lessee had authority to improve the road, and the lessor was bound, at the request of the lessee, to do all lawful corporate acts to enable the lessee at its expense to improve the railroad or make addition to lands. In everything except in the change of station grounds and buildings, the lessee was to be the actor and to furnish the funds; in regard to that, the lessor was to be the actor, — was to sell, with the consent of the lessee, the old, and to procure the new, and to furnish the means, from the proceeds of sales or from its own bonds, the interest on which the lessee was to pay. It was to purchase and grade the land, erect the buildings, and lay the tracks, and “ the new track, grounds, and buildings,” not the land when purchased, were to come under the lease.

Land purchased by the lessor, which was not connected with the road, but was intended for future use after it should be fitted and prepared, would not be land on which the road was located, and would be no part of the road. It would be land procured for the purpose of changing the road, and until the change should be made, and the new tracks put in connection with the road, it would not become a part of it. In this case the land-was not purchased, but was taken, and preparations for a change of location were made, by authority and direction of the statute. It does not appear that it was done under the lease, or with the assent of the lessee. The land, having been taken under the statute, was being graded and prepared for the new location and station required by the statute, when the damage was done; it was in possession of the lessor, there were no tracks or buildings upon it, and it was not connected or used with the railroad. It remained in the possession of the lessor until the tracks, grounds, and buildings were completed, ready for use, and then “ the premises were turned over ” to the lessee’s successor. We are of opinion that they did not come under the operation of the lease until the possession was thus taken by the lessee, and that the rulings asked for by the respondent were properly refused.

The only other exception is to the admission of evidence that a demand to build the retaining wall was made by the lessee upon the lessor. The exceptions state that this evidence was admitted de bene, and was not afterwards referred to by court or counsel. The amount of damage claimed by the petitioner was the expense of building the wall. We do not see how the evidence was material. If it had been contended for the respondent, that, after the lessee had accepted the premises without the wall, the lessor had no interest in it, or that for any reason it was necessary to show a demand for the wall by the lessee, it might have been competent. But it does not appear that any demand was necessary. As it was, it could have had no effect unless to forestall such an argument. It seems to have been in fact, and to have been regarded by the court, as immaterial when offered, but as something which might, in some possible aspect of the case, become material, and to have been no further regarded by any one. It was not received as an expression of the opinion of the officer who made the demand that a wall was necessary. It was immaterial evidence, by which the respondent was not injured.

Exceptions overruled.