Crystal Concrete Corp. v. Town of Braintree

35 N.E.2d 672, 309 Mass. 463, 1941 Mass. LEXIS 807
CourtMassachusetts Supreme Judicial Court
DecidedJuly 8, 1941
StatusPublished
Cited by29 cases

This text of 35 N.E.2d 672 (Crystal Concrete Corp. v. Town of Braintree) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crystal Concrete Corp. v. Town of Braintree, 35 N.E.2d 672, 309 Mass. 463, 1941 Mass. LEXIS 807 (Mass. 1941).

Opinion

Ronan, J.

The Crystal Sand & Gravel Co. leased to the defendant town on May 16, 1932, for the term of five years, a seven-acre lot of land in the vicinity of Ames Pond in said town, for the purpose of permitting the town to exea[466]*466vote and remove sand, gravel and other materials for highway construction. An individual who held two mortgages upon the leased premises assented to the lease and waived all rights of priority to the lease. The town took possession of the premises soon after the execution of the lease and was engaged in the excavation and removal of the said road building materials when, on January 25, 1933, the plaintiff acquired title through the foreclosure of a mortgage and has since continued as owner of the premises. Excavating operations were conducted by the town principally upon three acres of the demised premises — the other four acres did not contain material suitable for the purposes of the town — until May, 1936, when excavating ceased. Thereafter the plaintiff brought an action at law for conversion and trespass, which was changed to a suit in equity in which the bill, as amended, alleges that the town had wrongfully excavated and removed a large quantity of sand and gravel below the grade prescribed by the lease, and had left the premises without smoothing off the surface where the excavating had been performed. The suit was referred to a master whose reports have been confirmed, and a final decree was entered ordering the town to pay nominal damages in the sum of $1 for waste, and a further sum with interest, representing, the value of the material that it had wrongfully removed since the plaintiff had become the owner of the demised premises. Both parties appealed from the final decree.

The defendant raises no question but that it is bound by the terms of the lease. Winnisimmet Trust, Inc. v. Libby, 247 Mass. 560. Gorin v. Stroum, 288 Mass. 6. It sought in its answer to have the lease reformed upon the ground of mutual mistake, but the master found against the town on that issue and no question on that phase of the case has since been raised. The town does not contend that it is not liable for the value of the material that it removed below the grade designated by the lease, since the plaintiff became the owner of the land, or that the quantities or value of the excavated material appearing in the alternative findings of the master, based upon the location of the [467]*467grade at the two-foot level above the high water mark and upon the two per cent level, is not correct. The town’s sole contention is that it is liable only for the value of materials removed since January 25, 1933, below a horizontal grade two feet above the high water mark of the pond. The plaintiff’s sole contention is that upon the facts found by the master it was entitled to more damages than allowed it by the final decree.

The first question for decision is the determination of the grade or level below which the town was not permitted to excavate. The town contends that it could remove all materials that were above a level plane which was two feet above the high water mark of Ames Pond, while the plaintiff contends that the limit below which the materials could not be removed was a plane the edge of which near the pond was two feet above the high water mark, and that this plane then inclined upward at a two per cent grade as it extended away from the pond. The master found, on all the evidence, that the lease fixed the limits for excavating in accordance with the plaintiff’s contention.

After describing the demised premises by metes and bounds, the lease continued as follows: “all to a depth and grade line three feet above high water mark of Ames Pond.” The habendum clause, in so far as material, provided that the town should have the right to excavate “and otherwise to operate in and about the demised premises, and to leave the surface at not less than a 2% grade or 2 feet above the high water mark of Ames Pond, excepting those parts of the demised property now below said grade.” At the hearing before the master, the parties agreed that the word “two” should be substituted for the word “three” in the above quoted phrase “three feet above high water mark of Ames Pond.” There was evidence that, in the negotiations for the lease, the lessor desired to limit the excavation to a level three feet above the high water mark of the pond while the town wanted this level fixed at two feet, and that a compromise was reached in which it was agreed that excavating should be limited to a two per cent grade, beginning at the two-foot [468]*468level and sloping upward and away from the pond. There was other evidence that the town agreed that, when it turned over possession of the premises at the termination of the lease, it would leave a smooth surface at the site of the excavation which would slope upward at a two per cent grade from the pond. There was testimony that such a grade was necessary to protect the demised premises from an overflow from the pond. The only purpose in fixing a level for excavating was to prevent the land from being inundated by the pond. It was natural that the lowest level should be near the pond and that it should slope upward as it extended away from the pond. The town, which was not required to do any excavating -and which in fact excavated almost entirely in three acres of this seven-acre lot, did not have the choice of removing material to a depth below the two-foot level provided it left a smooth surface with a two per cent grade over the site where it had excavated. Such a construction would render the two-foot level meaningless. Likewise, it could not excavate to this two-foot level and leave the surface horizontal. To permit it to do so would be to ignore the provision requiring a surface with a two per cent grade. The lease is to be considered as a unit; all the words employed by the parties in expressing the terms and conditions of the transaction upon which they had entered must be given their appropriate meaning, and its various clauses are, if reasonably possible, to be so construed as to give force and effect to each of them. Effect must be given to the intent of the parties as shown by the words they used, interpreted in the light of the facts to which they apply and the circumstances that attended their use. Ball v. Wyeth, 8 Allen, 275. Weeks v. Wilhelm-Dexter Co. 220 Mass. 589. Perry v. Wilson Bros. Inc. 260 Mass. 519. Ginsburg v. Jacobson, 276 Mass. 108. Codman v. Hygrade Food Products Corp. 295 Mass. 195. Malden Knitting Mills v. United States Rubber Co. 301 Mass. 229. The level mentioned in the descriptive clause must be construed with the additional provision contained in the habendum clause requiring a smooth surface with a two per cent grade. The first clause [469]*469established a base line upon which a grade line was superimposed by the second clause. This is clearly shown in that portion of the habendum clause that frees the lessee from surfacing those areas of the demised premises “now below said grade.” The town was not required to grade where it was not authorized to excavate. An area that was above the two-foot level but below the two per cent grade could not be excavated to the said level.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Breneman v. Tanner
8 Mass. L. Rptr. 590 (Massachusetts Superior Court, 1998)
Meade v. Kubinski
661 N.E.2d 1178 (Appellate Court of Illinois, 1996)
Ceres Terminals v. CHICAGO CITY BANK
635 N.E.2d 485 (Appellate Court of Illinois, 1994)
Ceres Terminals, Inc. v. Chicago City Bank & Trust Co.
635 N.E.2d 485 (Appellate Court of Illinois, 1994)
Fayette R. Plumb, Inc. v. Cooper Industries, Inc.
587 F. Supp. 64 (E.D. Pennsylvania, 1984)
Ruddach v. Don Johnston Ford, Inc.
621 P.2d 742 (Court of Appeals of Washington, 1980)
Laurin v. DeCarolis Construction Co., Inc.
363 N.E.2d 675 (Massachusetts Supreme Judicial Court, 1977)
Missouri Baptist Hospital v. United States
555 F.2d 290 (Court of Claims, 1977)
Saugus Auto Theatre Corp. v. Munroe Realty Corp.
318 N.E.2d 615 (Massachusetts Supreme Judicial Court, 1974)
Cruzan v. Franklin Stores Corporation
380 P.2d 190 (New Mexico Supreme Court, 1963)
Gloucester Community Pier Ass'n v. Dehydrating Process Co. of Gloucester
157 N.E.2d 866 (Massachusetts Supreme Judicial Court, 1959)
Corbett v. Derman Shoe Co.
155 N.E.2d 423 (Massachusetts Supreme Judicial Court, 1959)
United States v. Flood Building
157 F. Supp. 438 (N.D. California, 1957)
Goodhue v. Leonardi
143 N.E.2d 200 (Massachusetts Supreme Judicial Court, 1957)
Realty Associates, Inc. v. United States
138 F. Supp. 875 (Court of Claims, 1956)
Foot v. Bauman
129 N.E.2d 916 (Massachusetts Supreme Judicial Court, 1955)
LaCouture v. Renaud
88 N.E.2d 627 (Massachusetts Supreme Judicial Court, 1949)

Cite This Page — Counsel Stack

Bluebook (online)
35 N.E.2d 672, 309 Mass. 463, 1941 Mass. LEXIS 807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crystal-concrete-corp-v-town-of-braintree-mass-1941.