COMMERCIAL WHARF CORP. v. BOSTON

Landlord and Tenant. Municipal Corporations. Evidence, Presumptions and burden of proof, Of occupation, Self serving acts. Maxims, Omnia rite esse acta praesumuntur.

A wharf corporation made a lease to a city of the right to use a part of its dock and flats "for a public float and landing place for boats" and "the right to drive, cap and maintain four oak piles, one at each corner of said float, to keep the same in position; also the right to build a platform" from one side of the pier "and a run or other suitable approach from said platform to said float, and to drive such piles as may be necessary in building said platform and approach." The city did all of these things. The lease contained a covenant by the city binding it to pay rent at the rate stipulated in the lease for such further time as it should hold the premises or any part thereof after the term of the lease or any extension of that term had expired. An extension of the term of the lease expired on December 1, 1901. In November, 1898, the city removed the float for repairs, and it never was brought back, but all the other structures erected by the city remained, as did also a notice purporting to be signed by the superintendent of streets reading " City of Boston Public Landing. Boats not allowed to tie up here." No notice of abandonment of the leased premises was given by the city. On August 6,1903, the mayor sent a letter to the wharf company notifying it that at the end of the quarter which should begin next after that date the city would quit and deliver up the premises theretofore used by it for a float and landing place. Later the wharf company brought an action of contract on the covenants of the lease for the rent from March 1, 1903, to December 1, 1903. The plaintiff offered in evidence the letter of the mayor mentioned above which was excluded by the judge. The plaintiff also, for the purpose of showing that payments of rent were made by the defendant after the expiration of the extension of the lease up to April, 1903, offered in evidence entries in a book kept by the plaintiff's deceased wharfinger containing declarations to that effect. This evidence was excluded by the judge on the ground that no authority from the city to make the alleged payments had been shown. The judge also excluded evidence offered by the plaintiff to show that between December 1, 1901, and December 1, 1903, it made no charge for landing on the platform constructed by the defendant under the lease, although it made a charge after the last named date and made charges for a similar use of other parts of the wharf. The judge ordered a verdict for the defendant. Held, that the removal of the float for repairs by the defendant in November, 1898, did not constitute an abandonment of the premises; that the letter of the mayor should have been admitted in evidence as tending to show that the defendant was holding over when the letter was written; that in connection with other evidence it was competent for the plaintiff to show that it had recognized the alleged occupation of the defendant by refraining from making any charge for landing upon the platform; that the entries in the books of the deceased wharfinger should have been admitted in evidence, as in the absence of evidence to the contrary it would be presumed that the payments stated in the entries were made with authority; and that the liability of the defendant depended on whether it had occupied any part of the leased premises during the period sued for, which was a question of fact for the jury.

The acts of a public official are presumed to have been done rightly until the contrary is shown.

On the issue whether a city has surrendered certain leased premises on the termination of a lease or has continued to occupy them so as to be liable on a covenant to pay rent during such occupation, the liability of the city is to be determined as that of any citizen would be.

SHELDON, J.

No question seems to have been made but that the lease and the extension for five years from December 1, 1896, were duly executed and became binding upon the defendant. Nor was there any dispute that for any occupation of the whole or a part of the leased premises after the term of the lease, as extended, had expired, the defendant would be liable to pay rent at the rate stipulated in the lease. The question at issue was whether there had been such occupation. The defendant contends that it had abandoned the premises in November, 1898, by removing the landing float, and in no way had occupied them since that time.

The property leased to the defendant was the right to use a certain part of the plaintiff's dock and flats "for a public float and landing place for boats," and the "right to drive, cap and maintain four oak piles, one at each corner of said float, to keep the same in position; also the right to build a platform" from one side of the pier "and a run or other suitable approach" from the platform to the float, "and to drive such piles as may be necessary in building" the platform and approach. The defendant did all these things.

The mere removal of the float by the defendant in November, 1898, for repairs, all its other erections having been left there, did not constitute an abandonment, even though it never was brought back. Nor was anything further done upon the expiration of the extended term, December 1, 1901. The other erections made by the defendant were not removed, and apparently were still in position until the end of the period sued for. There also was evidence that the defendant had put a notice upon the premises, purporting to be signed by the superintendent of streets, reading, "City of Boston Public Landing. Boats not allowed to tie up here"; and that this remained in position until after the expiration of the period sued for. No notice of any kind was given by the defendant of its abandonment of the leased premises. It is true that no notice was required to terminate the tenancy at the expiration of the lease; but in view of the other facts of the case this failure to give notice might have some significance. Under these circumstances we are of opinion that the plaintiff should have been allowed, if it could do so, to show the declarations of White, its deceased wharfinger, contained in entries in the books kept by him, that payments of rent for these premises had been made by the defendant after the expiration of the lease up to April, 1903. The books which were offered to show these declarations were not objected to as such; and they appear to have been excluded simply because no authority from the city to make the alleged payments had been shown. But the offer was to show that the payments were made by the city; the contents of the books are not before us; and we cannot suppose that the payments purporting to be made were made through merely inferior officers of the defendant city. If made by the mayor and treasurer, or either of them, the presumption omnia rite esse acta would apply. Washington National Bank v. Williams, 190 Mass. 497. The mayor is the chief executive officer of the city. Nichols v. Boston, 98 Mass. 39. The treasurer is the person charged with its financial affairs and the responsibility for its moneys. Apparently the whole matter of this lease and its extensions had been attended to from the beginning by the mayor; and evidence of his actions in the matter was prima facie competent. Davies v. Mayor of New York, 93 N.Y. 250. Such evidence was received and acted upon against the same objection in St. Louis Gas Light Co. v. St. Louis, 11 Mo. App. 55, 74, 75, upon the presumption of right acting which attends the conduct of every person in an official station until the contrary is shown. Read v. Sutton, 2 Cush. 115. Bank of the United States v. Dandridge, 12 Wheat. 64, 69, 70. United States v. Adams, 24 Fed. Rep. 348. Mandeville v. Reynolds, 68 N.Y. 528, 534.

It must be remembered that this is a question of merely private right, in which no governmental function is to be dealt with, and the liability of the defendant is to be determined, as that of any citizen would be, by the contract which it has made. Boston Molasses Co. v. Commonwealth, 193 Mass. 387. Chicago v. Sexton, 115 Ill. 230. It is not denied that if such payments were made after the term of the extended lease had expired this would furnish some evidence of a holding over by the defendant; and there was no assertion of any act of abandonment or surrender during the period sued for after the time covered by the payments.

For the same reasons, the letter written by the mayor, dated August 6, 1903, should have been admitted. It was of course open to explanation; but it tended to show that the city was holding over when the letter was written. Blanchard v. Blackstone, 102 Mass. 343, 348. O'Leary v. Board of Education, 93 N.Y. 1. 1 Dillon, Mun. Corp. (4th ed.) § 305, note. In connection with the other evidence, it was competent for the plaintiff to show that it had recognized the alleged occupation of the city by refraining from making any charge for landing upon the platform constructed by the city under the lease.

It is not necessary to consider the requests for rulings in detail. The liability of the defendant depended upon whether it actually had occupied any part of the leased premises during the period sued for; and this presents a question of fact to be determined by the jury.

Exceptions sustained.