Practice, Civil, Conduct of trial, Challenging jurors. Landlord and Tenant, Construction of lease. Contract. Way, Private, Of necessity. Grade Crossing. Damages, For property taken or injured under statutory authority, Mitigation.
Where the owner of certain real estate, which has been damaged in the course of the abolition of a grade crossing of a railroad with a town way, and one who occupies it under a lease from the owner severally bring against the railroad company petitions for an assessment of the damages which they have sustained, and, under R.L.c. 48, §§ 20, 23, the cases are tried together, each party, under R.L.c. 176, § 29, is privileged to challenge four jurors without assigning any cause.
Where, by the provisions of a lease in writing, the lessor grants to the lessee "a right of way of at least twelve feet in width from the northerly line of said lot [described in the lease] to the cart path . . . and to a point on said cart path within two hundred feet at least from" land of an adjoining owner, "together with a right of way over said cart path or equally convenient way . . . to M. Street," and the lessee, with the acquiescence of the lessor, adopts and uses a way within the location mentioned, a definite assignment of the way is effected; and if, in accordance with a decree made in grade crossing proceedings under R.L.c. 111, §§ 149-152, as amended by Sts. 1902, c. 440, § 3; 1905, c. 408, § 2, a new street is constructed upon an embankment which lies between the cart path and the land leased and is elevated from twenty-four to thirty-eight feet beside such land, the private way thus established is discontinued and extinguished.
Where, in a lease of a parcel of real estate, which is in one corner of a large tract owned by the lessor, the lessor grants to the lessee a right of way from the land described to a certain cart path "together with a right of way over said cart path or other equally convenient way" to certain points at the termini of the cart path, and, under authority of a decree abolishing a grade crossing of a railroad with such cart path, a new street is constructed upon an embankment which lies between the cart path and the land leased and rises from twenty-four to thirty-eight feet above them, the lessor cannot be compelled to assign to the lessee another convenient way connecting the leased premises with the points beyond the termini of the cart path, nor is a way of necessity created for the lessee by such acts of eminent domain occurring after the execution of the lease.
Where the owner of a large tract of land leases for a term of ten years a portion of it to a manufacturing corporation, together with a right of way connecting the leased premises with a cart path on the land of the lessor not included in the lease, which leads to public streets, and the lessee thereupon places upon the land leased a building containing fixed machinery, and subsequently, in accordance with proceedings for the abolition of a grade crossing of a railroad with a way, which were begun after the lessee had so built upon the land, a new way, extinguishing the way given to the lessee by the terms of the lease, is constructed upon an embankment which lies between the cart path and the premises leased and rises from twenty-four to thirty-eight feet above them, and both the lessee and the lessor severally petition for an assessment of their damages, the jury should be instructed to assess separately the damages to the leasehold and those to the reversion; and the lessee in its suit can recover the difference between the fair market value of the leasehold, including the improvements, as it was on the date of the decree and such value as it had after the construction of the crossing and the new street, as well as any special and peculiar damages which it sustained by the property's being made inaccessible for the carrying on of business during the progress of the work and by the machinery being injured by dust caused by the construction work.
In assessing damages suffered by a lessee of real estate by the abolition of a grade crossing of a railroad with a way, a provision in the lease giving to the lessee a right at any time during its term of ten years to purchase the premises leased at their fair value should not be taken into consideration either to enhance or to diminish the lessee's claim.
In assessing damages suffered by a lessee of real estate because of the extinguishment, in the abolishing of a grade crossing of a railroad with a way, of a private way granted to him from the leased premises to a cart path on remaining premises of the lessor leading to public streets by the building across it and between the leased premises and the cart path of a new street upon an embankment which rises from twenty-four to thirty-eight feet above them, the jury should give consideration to the question, whether, by the construction of suitable approaches at the former position of the private way granted to him, the new street could not have been used for all reasonable and necessary purposes of transportation or of travel during the remainder of the term of the lease.
By the provisions of a lease of land, the lessor granted to the lessee for a term of ten years a portion of a large tract owned by him and a right of way from the leased premises to a cart path on the premises which he retained, which led in both ways to public streets. In the course of the abolition of a grade crossing of a railroad with a way, a new street was constructed upon an embankment between and from twenty-four to thirty-eight feet above the premises leased and the cart path, entirely extinguishing the private way given in the lease. This new street was parallel to the cart path, but came to a dead end on the lessor's land. At the trial of a petition by the lessee for an assessment of damages suffered by him in the construction of the work of abolition, the presiding judge charged the jury that they might take into consideration the possibility or probability of the town's continuing a public street to the dead end of the street so left, and thus connecting the new street with the streets to which the cart path ran. Held, that the instruction was incorrect since it failed to direct the jury's attention to the fact that, unless the petitioner had some means of access to the new street, the extension of the new street to other streets of the town was of no benefit to him.
By the provisions of a lease of land, the lessor granted to the lessee for a term of ten years a portion of a large tract owned by him and a right of way from the leased premises to a cart path on the premises which he retained, which led in both ways to public streets. In the course of the abolition of a grade crossing of a railroad with a way, a new street was constructed upon an embankment between and from twenty-four to thirty-eight feet above the premises leased and the cart path, entirely extinguishing the private way given in the lease. This new street was parallel to the cart path, but came to a dead end on the lessor's land. Evidence was admitted on behalf of the respondent at the trial of a petition by the lessee for an assessment of damages suffered by him in the construction of the work of abolition, tending to show that the lessee had made no attempt to secure from the lessor a new right of way through the lessor's land to connect with the new street at a different point than the place where the former right of way existed. Under the lease the lessor could not be compelled to assign such right of way. Held, that the evidence wrongly was admitted.
A lessee of real estate, who has erected upon the leased premises a factory with machinery, some of which is fixed and some movable, and who, by the extinguishment, in the course of the abolition of a grade crossing of a railroad with a way, of a private way given him in his lease, is prevented from using his factory or moving the movable machinery, in a petition seeking the assessment of the damages suffered by such work, under R.L.c. 111, §§ 149-152, as amended by Sts. 1902, c. 440; 1905, c. 408, cannot recover for consequent decrease in the value of the movable tools, either directly, or indirectly by proof of its value in connection with the fixed machinery.
The damages suffered by one, who occupies land under a lease in accordance with the provisions of which he had been assigned a right of way which gave him access to a private way connecting with the public streets of a town, which right of way has been extinguished by the construction, in the course of the abolition of a grade crossing of a railroad with the private way, of a new street over it, built to take the place of the former private way, which damages, under R.L.c. 111, § 153, Sts. 1902, c. 440, § 3; 1905, c. 408, § 2, are to be assessed against the railroad company, are the entire damages suffered by the petitioner, not only those suffered within the railroad location.
BRALEY, J.
The petitioner, which held a lease of a part of the premises, and the landowner having severally brought suits against the respondent and the town to recover damages caused to their respective estates by the discontinuance of a private way at a grade crossing and by the taking of land for a public way, laid out and built pursuant to the decree, the cases were tried together in accordance with the provisions of R.L.c. 48, §§ 20, 23. The joinder for the convenience of trial, however, having worked no change in the statutory liability of the respondents, which remained several and not joint, each party was privileged under R.L.c, 176, § 29, to challenge four jurors without assigning any cause. Stone v. Segur, 11 Allen, 568, 570.
If a reference to the evidence, rulings and instructions in the other cases is necessarily contained in the exceptions, the only remaining questions before us relate to the petitioner's title and the measure of damages recoverable against the railroad corporation.
The petitioner's estate having consisted of the land described in the lease, with the rights of way referred to as appurtenant, it becomes important to ascertain the location of the passageway leading from the demised premises to the cart path. The cart path, with the connecting way on the west, being in existence at the date of the lease, is referred to without further description, but the passageway providing the only roadway from the leased premises is described as starting from the northerly line of the lot with a width at least of twelve feet, and thence running over other land of the lessor to the cart path about one hundred and fifty feet distant, which it was to join at a point within two hundred feet from land of the railroad abutting on the east. The termini and maximum width having been fixed, with the choice conferred on the lessee of determining at what point within the two hundred feet the passageway should take its departure, the subsequent location by user, in which the jury could find the lessor had acquiesced, operated as a definite assignment from which without his consent there could be no deviation. George v. Cox, 114 Mass. 382. Stetson v. Curtis, 119 Mass. 266. Lipsky v. Heller, 199 Mass. 310,318. Bass v. Edwards, 126 Mass. 445.
In the enjoyment of the leasehold, after reaching the cart path the petitioner could proceed to a highway either on the west by crossing the bridge over the river as the most convenient route, or on the east over the railroad at grade.
It was within the authority of the commissioners to prescribe what alterations were necessary to do away with the crossing, and their decree is declared by the statute to constitute a taking of whatever land or other property they decide may be required to carry out the changes. R.L.c. 111, § 152, as amended by the Sts. of 1902, c. 440, § 3. By the scope of the decree a permanent public easement in the entire area within the defined layout of the street with the accompanying slopes was taken. Doon v. Natick, 171 Mass. 228. But if the fee remained in the lessor, the passageway, or outlet, being within the metes and bounds, even if not specifically named, was discontinued and extinguished when the work had been entered upon. Central Wharf v. India Wharf, 123 Mass. 567, 570. Googins v. Boston Albany Railroad, 155 Mass. 505. Doon v. Natick, 171 Mass. 228. Scholefield v. Boston Maine Railroad, 173 Mass. 387, 390. Lancy v. Boston, 186 Mass. 128, 133. The street as constructed having rendered the use of the same level in transit impossible by the extreme difference in grade, an essential element of the private easement had been destroyed, and there remained no concurrent use not inconsistent with the rights of the public, which the petitioner might exercise, as in Clark v. Worcester, 125 Mass. 226, 231. See also Denniston v. Clark, 125 Mass. 216, 221; and Como v. Worcester, 177 Mass. 543.
See also St. 1905, c. 408, § 2.
After extinguishment of the way, the lessee possessed no enabling rights under the lease to require the lessor to assign another way connecting the leasehold with the cart path. The covenant to assign equally convenient ways refers to ways then in existence to which specific reference is made, and a way by necessity did not arise, even if the jury found that by the course of events the petitioner, having been left in a cul de sac with the opening closed, was for a period cut off from any available method of ingress and egress necessary for the commercial use of its estate. A way of this nature comes into existence at the time of a grant which has omitted to provide access to the estate conveyed. Oliver v. Pitman, 98 Mass. 46. Morse v. Benson, 151 Mass. 440. And it is only when a way is obstructed, or closed by the acts of the owner of the servient estate, that the owner of the dominant estate may depart from the located way and pass over other portions of the land. Leonard v. Leonard, 2 Allen, 543. Upon the establishment of the passageway the petitioner obtained an uninterrupted line of communication, which as between itself, the lessor, and the railroad corporation formed an indivisible easement. The leasehold accordingly should be considered as abutting on a continuous way, whose location was clearly defined, and could not be changed without a reassignment. Killion v. Kelley, 120 Mass. 47, 52.
The rulings requested and refused as to the scope of the petitioner's appurtenant rights and the effect of the decree, as well as the instructions to the jury to which the petitioner excepted, were erroneous.
Inasmuch as there must be a new trial at which the questions may again arise, we take up the exceptions to the rulings and instructions as to damages.
The eviction not having been caused by the acts of the lessor, there had been no breach of the covenant for quiet enjoyment, as the lessee's occupation of the premises was subject to the exercise of the right of eminent domain. Weeks v. Grace, 194 Mass. 296, 298. The lessee's remedy therefore is under the provisions of R.L.c. 111, § 153, as amended by St. 1902, c. 440, § 2. The freehold and leasehold being incommensurate, and no part of the reversion having been taken, if as to this respondent damages in gross were awarded for injury to the entire tract caused by the closing of the cart path at the crossing, the apportionment to the lessee would not measure the damages suffered in the extinguishment of the passageway in which the lessor had no inherent interest. If to avoid this objection the course pursued at the trial is followed, and for the assessment of damages the freehold is treated as severable, even then the injury to the reversion does not differ in kind from the injury to the remaining land, as the lessor made no claim that the buildings and fixed machinery formed a part of his estate. The rule of apportionment under R.L.c. 48, § 20, where there are leasehold interests, even if held applicable in Providence, Fall River Newport Steamboat Co. v. Fall River, 187 Mass. 45, 50, to proceedings for the abolition of grade crossings, does not deprive a lessee from recovering compensation independently of the lessor, if a settlement has been made with him, or where the damages to the leasehold are distinct and separate from those suffered by the landowner. Pegler v. Hyde Park, 176 Mass. 101, 103. Galeano v. Boston, 195 Mass. 64. See Harris v. Howes, 75 Maine, 436.
But while the damages to the leasehold should have been assessed separately, no exceptions were taken to the instructions which seem to have been in conformity with the tenth request. By the verdict in his favor, however, which apparently has not been set aside, the lessor, having received compensation for injury to the reversion, has ceased to have any pecuniary interest in the present action, and no question of apportionment will arise at the second trial. It will then be open under the allegations in the petition for the petitioner to recover the difference between the fair market value of the leasehold, including the improvements, as of the date of the decree, and its value as left after the building of the street to its westerly end, with the elevation of the bed of the railroad at the easterly end, cutting off the use of the spur track. It also can recover any special and peculiar damages which have been sustained, so far as the property was rendered inaccessible for the carrying on of business during the progress of the work, together with any injury affecting the use of the machinery, arising from the deposition of dust coming from the street while in process of construction. Drury v. Midland Railroad, 127 Mass. 571. Lawrence v. Boston, 119 Mass. 126. Pennsylvania Railroad v. Ebry, 107 Penn. St. 166. Edmands v. Boston, 108 Mass. 535. New York, New Haven, Hartford Railroad v. Blacker, 178 Mass. 386. Putnam v. Boston Providence Railroad, 182 Mass. 351. Munn v. Boston, 183 Mass. 421. Sheehan v. Fall River, 187 Mass. 356, 361. Hyde v. Fall River, 189 Mass. 439. Galeano v. Boston, 195 Mass. 64.
The value of the lessee's option of purchase, provided for in the lease, can neither enhance nor diminish the petitioner's claim, as damages are assessed for injury to its interest as of the date of the taking. Pegler v. Hyde Park, ubi supra.
In determining whether to an appreciable degree there had been any permanent depreciation, the jury should take into consideration whether, after completion at the westerly end as called for by the decree, the street, by the construction of suitable approaches at the passageway where it opened on the leasehold, could have been used for all reasonable and necessary purposes of transportation or of travel during the remainder of the term, and also whether a connection with the railroad was not still feasible.
While the ruling requested, that the probability of the town's laying out a continuation of the street could not be taken into consideration, was properly refused, and the jury correctly were instructed to consider whether the town ultimately would extend it across the river to the highway on the westerly side, their attention also should have been directed to the limitation, that unless the petitioner could reach the street by building an approach at the passageway, it would derive no benefit by the extension. Como v. Worcester, 177 Mass. 543. Heald v. Kennard, 180 Mass. 521, 523.
But neither during its construction at any stage, nor after completion did the lessee have the right to build an embankment or approach on the lessor's land, or to enter upon his premises to pass around the completed west end, either to gain access to the street or to reach the cart path. Killion v. Kelley, 120 Mass. 47, 52. Both were bound by the terms of the lease, which as we have said conferred no alternative rights as to the passageway.
The petitioner undoubtedly was required to make use of every reasonable means to obtain access to the cart path or to the street, and damages could not be enhanced by its inactivity, but until some proof appeared that such an effort was practicable, a failure to make the attempt would not diminish damages actually suffered. The evidence that either of these methods could have been adopted, or that the lessor had not offered a way in substitution, was wrongly admitted.
The petitioner, while permitted to show the value of the fixed machinery, was not allowed to introduce evidence of the decreased value of the necessary movable tools and appliances used in its business. But under our decisions there could be no recovery for injury to this class of property, even if by closing the passageway its removal had been made practically impossible during the period of construction. Nor could this be accomplished indirectly by proof of its valuation in connection with the fixed machinery, to be used as an element of computation in determining the damage caused by loss of access. The exclusion of this evidence and the refusal to rule that its value in any form could be recovered was correct, and the instructions given were appropriate. Edmands v. Boston, 108 Mass. 535. Sawyer v. Commonwealth, 182 Mass. 245. New York, New Haven, Hartford Railroad v. Blacker, 178 Mass. 386. Bailey v. Boston Providence Railroad, 182 Mass. 537. Boston Belting Co. v. Boston, 183 Mass. 254.
It remains to determine whether the respondent is liable in the first instance for the petitioner's entire damages, or whether the damages are separable, to be assessed partly against the town and partly against the railroad. The crossing was a private way for which the street was built strictly in substitution, and the statute on which the decree rests makes provision for but one public work, without any distinction as to the relative importance of one part over another, in the adjustment necessarily required for the separation of grades. Farwell v. Boston, 180 Mass. 433. Davis v. County Commissioners, 153 Mass. 218, 227. The railroad is primarily to pay for all damages "which may be sustained by any person in his property," where the discontinuance is of a private way. R.L.c. 111, § 153. St. 1902, c. 440, § 3. St. 1905, c. 408, § 2. If the railroad is to be held responsible only for the discontinuance of the portion within its location, the injury is the same in kind, even if the damages must differ in amount, from those caused by the extinguishment of that portion of the way within the limits of the street. It is obvious that, when the passageway affording the only available means of entrance and exit had been extinguished, the petitioner would not have suffered any larger injury if the street had been laid out wholly within the confines of the cart path, for the discontinuance of which the respondent would then have been answerable. But in estimating damages the same result follows for, upon the appropriation of a part at each end leaving the intervening portion inaccessible, a complete discontinuance of the whole of the way from the northerly line of the leasehold had been worked. Webster v. Lowell, 142 Mass. 324, 338.
We are of opinion that the instructions which in substance restricted the liability of the respondent to the discontinuance of the portion of the cart path at the crossing were incorrect, and the jury should have been instructed that the petitioner's entire damages were to be assessed against the railroad corporation, with interest from the time when possession was taken for the purposes of construction. R.L.c. 48, § 13.
Exceptions sustained.