Harris v. Howes , 1883 Me. LEXIS 153 ( 1883 )

Peters, J.

The plaintiff claims to maintain an action for money had and received upon these facts : Damages were awarded to the defendants for land taken for widening a street in the city of Belfast. The plaintiff at the time had a lease of a portion of the land. In the proceedings no notice was taken of the lease, nor was any claim .set up by the lessee, and the damages were estimated and awarded as if there had been no lease upon the premises. This seems to be shown by the facts and admitted by fhe arguments.

The plaintiff contends that in equity and good conscience he is entitled to recover from the defendants, to whom the whole damages were paid, such a proportion thereof as should legally have been awarded to his interest in the land as lessee.

There can be no doubt that, under the rule maintained in the earlier Massachusetts cases, and adopted into the practice in such proceedings in this state, there should have been separate awards to the lessors and lessee for their respective interests in the premises; the sum of the awards not to exceed the entire ■value of the land taken. The lessee’s "land” was condemned, in the sense of the word as used in the statute, and the lessee was "aggrieved” thereby. Ellis v. Welch, 6 Mass. 246; Parks v. Boston, 15 Pick. 198; Patterson v. Boston, 20 Pick. 165.

By the fault or mistake of both of the present parties, one .■award only was made. The plaintiff mistook in not claiming, .and the defendants in not disclaiming, the right to recover the lessee’s damages. We do not see why a bill in equity would not lie to rectify the mistake, nor why the present action cannot be sustained for such purpose. Certainly, the defendants have money in their hands which equitably and fairly belongs to the •plaintiff. There can really be no more difficulty for this court vto determine the relative sums belonging to the parties, than for county commissioners to work out the result. The duty of the commissioners would huye been first to ascertain the entire damages and then apportion them. Nor is it unusual in such proceedings in many of the states, for an award to be made in gross, and the division to be made afterwards according to ownerships. Wilson v. Railroad, 67 Maine, at p. 363. The present Massachusetts statutes furnish a mode of proceeding similar to that. Mass. Gen. St. c. 4; Boston v. Robbins, 126 Mass. 384. Proceedings have been sustained where only the quantum of damages was found and awarded to " owners unknown.” Com. v. Great Barrington, 6 Mass. 492; In matter of Eleventh Avenue, 81 N. Y. 436. See 2 Mass. 489; and Brown v. Co. Com. 12 Met. 209.

Of course, the plaintiff should not recover an amount exceeding his relative share of the whole amount awarded, less a pro rata proportion of the costs and expenses whieh the defendants were subjected to in obtaining the award. Had there been a contest before the commissioners as to title, and the whole title been awarded to the defendants, perhaps the plaintiff should not recover anything. But the plaintiff’s title was in nowise contested. The damages seem to have been awarded to the title as an entirety, without regarding the minor ownership. There was no decision that the plaintiff was not entitled to damages. The plaintiff and defendants could have joined in one complaint for the prosecution of their claims. The law finds some privity of contract from this relationship or alliance of parties. This case belongs to the class of cases in which, under Lord Mansfield’s rule, adopted in this state, not adopted in all the states, the law forcibly implies the privity, if need be, because equitable? Keene v. Sage, 75 Maine, 138, and cases cited; 2 Whar. Con. 722.

The defendants contend that the lease terminated on May 1, 1878. The cases cited show the contrary. The lease gave the plaintiff an option to continue the lease for five years after that date. That the plaintiff accepted a continuance and made his acceptance effectual, is proved by his paying and the defendants accepting the rent regularly since that time. The case of Howes v. Belfast, 72 Maine, 46, shows that the final hearing in damages for the land taken was in August, 1878. At that time there was no contingency about the continuance of the lease. Ita continuance was then fixed. Holley v. Young, 66 Maine, 520.

Defendants defaulted. Damages to be assessed at nisi prim.

AppletoN, C. J., DaNeorth, VirgiN and Libbey, concurred.