Richmond v. Ames

41 N.E. 671, 164 Mass. 467, 1895 Mass. LEXIS 268

• Court: Massachusetts Supreme Judicial Court
• Decided: October 19, 1895
• Status: Published

Opinion

Field, C. J.

The report of this case is in some respects too meagre to present the questions of law involved in it in a satisfactory manner. We do not know from the report whether the $2,587.86 which the plaintiff “ had to pay in damages ” “ in order to remove so .much of the encumbrance as is affected by the cases of Starkie and Green against Richmond,” was the sum of the damages assessed in those cases, if any damages were assessed, or whether it was a sum agreed upon by the parties to those suits. We do not know whether the court in the present case found that this was a reasonable sum to be paid, or whether the court held that, by reason of the notice of the pendency of those suits given to the husband of the present defendant, she became conclusively bound to pay to the present plaintiff the amount of the damages recovered in those suits, if any were recovered. We do not know why the court found that the plaintiff in the present suit was entitled to recover interest “ from October, 1892.” This may have been the date when the money was paid by the present plaintiff, but that does not appear in the report. The date of the writ in the present action is June 12, 1893. The report refers to the cases of Starkie v. Richmond and Green v. Richmond, found in 155 Mass. 188, and it may be considered that those cases as they are there reported are to be taken as a part of the report of the present case.

The original papers in those cases entered in this-court show that it was a part of the final decree in each case that the plaintiff’s damages should be assessed by a jury, but it does not appear, and we have no means of knowing that this was done, or that the damages were assessed in any manner, although as it seems the briefs of both parties in the present suit assume that the damages were assessed, and also assume that the damages found in the present case to have been paid by the plaintiff are the sum of the damages assessed in those suits.

No specific questions of law are reported in the present case for the consideration of this court, but certain facts are reported, some of the evidence is reported verbatim, and there are certain findings of fact by the court, and this court is to enter, such judgment “ as shall be deemed proper.” We see no reason to doubt that the Superior Court was warranted by the evidence in finding as it did in the first and second clauses of the findings of fact set out in the report.

The remaining questions of law relate to the measure of damages. The plaintiff’s claim is, that the land conveyed to him by the defendant’s deed was on its southerly boundary subject to a right of way in favor of other persons. The suit is maintained on the covenant against encumbrances. The suits of Starkie and Green v. Richmond were suits in equity to compel the defendant therein, who is the plaintiff in the present suit, to tear down a building which he had erected, and which was found to extend over a small part of the way, and also to remove a fence which enclosed a triangular piece in the rear of the lot, which was subject to this right of way. The court, under the facts found in those cases, refused to order the removal of the building, and appointed commissioners to run the line of the way. We understand that the fence was at some time removed, leaving the triangular piece thereafter open for the use of the persons entitled to use the way. Although the building encroached upon the way, yet the court permitted the building to stand, and decreed that the plaintiffs in those suits should be compensated in damages to be assessed for the destruction in part of their right of way. We do not know on what principles the damages were assessed in those suits, if they were assessed, or what issues were submitted to a jury, if any were submitted.

If the fair interpretation of the third clause of the findings of facts set out in the report is that the plaintiff bought off the encumbrance of the right of way so far as the building extended over the line of the way, and had to pay therefor $2,587.86, and if it be assumed that these are the damages assessed in the suits of Starkie and Green v. Richmond, one question is whether the present defendant had notice of those suits, and was called upon to take upon herself the defence of them. Upon this question all of the evidence is reported. The evidence tends to show that the husband of the present defendant had notice of the bringing of those suits and was a witness at the trial of them, and that he managed his wife’s real estate for her by her permission, but there is no evidence that the wife, who is the present defendant, had any notice. There is no evidence that the husband had notice in terms that his wife would be held responsible for the result of the suits, or that she was called upon or would be given an opportunity to defend them. There is no evidence that the notice was given with any such intention, or was understood by the husband to be a notice to his wife to come in and defend the suits. We doubt whether the fact that the husband was the agent of the wife in the management of her real estate made him her agent to receive any such notice for her. It is not within the ordinary scope of the duty of such an agent to appear for his principal in suits between other persons relating to real estate not belonging, to his principal, and to take upon himself the defence of the suits. In giving such a notice, although the strict formalities of the ancient law are not now required, still, whatever its form, the notice should be such as to give the person notified information that he is called upon to come in and defend the suit if he chooses, and that he is to be held responsible for the result of the suit. Boston v. Worthington, 10 Gray, 496. Chamberlain v. Preble, 11 Allen, 370. Elliott v. Hayden, 104 Mass. 180. Boyle v. Edwards, 114 Mass. 373. The principal object of the suits of Starkie and Green was to compel the defendant therein to remove a building which be had erected. The assessment of damages was incidental only, and if it be assumed that the present defendant could properly be vouched in to defend such suits, there is no antecedent probability or presumption that the defendant in suits of this nature would be willing to intrust the defence to another person.

It may be that notice of the pendency of a suit, without more, given to the person who is responsible over, may, under some circumstances, imply that the person notified is called upon to defend the suit, and it may be so understood by that person, but this is not the ordinary effect of such a notice. There is no evidence in the present case that the notice was anything more than information orally given to the husband that the suits had been brought and that he might be needed as a witness, without any intimation that his wife should be informed of it and should take upon herself the defence of the suits. We are of opinion that, on the evidence reported, it could not properly be found that the notice was intended as a notice to the wife to come in and defend the suits, or was so understood by the husband.

Still, if this defendant is not bound by the assessment of damages in the suits of Starkie and Green, yet if it was reasonable for the present plaintiff to buy off the encumbrance, so far as the building was concerned, and if the sum paid was reasonable, the plaintiff can recover such reasonable sum in the present suit, with interest from the time of payment. If it was a question reasonably doubtful whether the plaintiffs in the suits of Starkie and Green were right in their contention as to the right of way, the present plaintiff had the right to defend those suits, and it may be that he had the right to ask the present defendant to defend them, and that any expenses reasonably incurred in defending against the claim of a right of way made in those suits he can recover of the present defendant. Bradshaw v. Crosby, 151 Mass. 237. Farnum v. Peterson, 111 Mass. 148. Whether such expenses should include reasonable fees paid for counsel, in addition to the taxable costs, is on the authorities a question of some difficulty. If it was the duty of the present defendant to defend the suits, and she .had an opportunity of defending them and declined to do so, then, if the present plaintiff in good faith defended them, it would seem that reasonable counsel fees should be recovered. Westfield v. Mayo, 122 Mass. 100. See Leffingwell v. Elliott, 10 Pick. 204. If no opportunity was given to the present defendant to defend the former suits, the law, perhaps, is more doubtful. See Lindsey v. Parker, 142 Mass. 582. Boston Albany Railroad v. Charlton, 161 Mass. 82. We are unable to determine from the report precisely what the court found in these respects.

One contention is that the present plaintiff, after notice by Starkie’s wife in 1878 that he was proceeding to build on the passageway, persisted in going on with the erection of his building, and thus by his own fault increased the damages which he had to pay, and it is argued that the present defendant ought not to be compelled to pay damages occasioned by the fault of the plaintiff. If damages were assessed in the suits of Starkie and Green, we have said that we do not know on what principles they were assessed. We infer that the damages should have been assessed in those suits on the principles of a compulsory purchase of the encumbrance, so far as the erection of the building was concerned, and that this should have been done on the theory of paying compensation at a fair price for the encumbrance in view of all the circumstances. It is probable that the court, by refusing to compel the defendant in those suits, who is the present plaintiff, to take down his building, and, by ordering an assessment of damages, did not mean to give to the plaintiffs in those suits an opportunity to obtain an unreasonable price for a release or discharge of the encumbrance. It is entirely consistent with the facts reported, that the present plaintiff proceeded in good faith in erecting his building, even after the notice of Starkie’s wife. The facts so far as they are reported are. such that it might well require the judgment of a court in order to determine the boundaries and width of the passageway which Starkie and Green were entitled to use. If the damages assessed in the suits brought by them are not to be taken as conclusive upon the defendant in the present suit, it was for the court to determine whether the present plaintiff acted reasonably in contesting those suits and in buying off the encumbrance.

In regard to the triangular piece, we infer that the court in the present case estimated the diminished value of the plaintiff’s estate by reason of the encumbrance, not as of the date of the deed or as of the time of the trial, but as of date when the encumbrance of the right of way under the building was extinguished by purchase. In an action on the covenant against encumbrances, when the encumbrance is a right of way, and has not been relinquished, the damages are that amount of money which is a just compensation to the plaintiff for the real injury resulting from the encumbrance. Wetherbee v. Bennett, 2 Allen, 428. The general rule is stated in Harlow v. Thomas, 15 Pick. , 69, as follows: “The general rule in cases of this kind is plain and undisputed. If the covenantee has fairly extinguished the encumbrances, he ought to recover the expenses necessarily incurred in doing it. If they remain and consist of mortgages, attachments, and such liens on the estate conveyed as do not interfere with the enjoyment of it by the covenantee, he can recover only nominal damages. But if they are of a permanent nature, like the perpetual servitudes in this case, such as the covenantee cannot remove, he should recover a just compensation for the real injury resulting from their continuance. Prescott v. Trueman, 4 Mass. 680.” See Batchelder v. Sturgis, 3 Cush. 201.

We think that these damages are usually assessed as of the date of the trial. If there have been special damages theretofore suffered by the plaintiff by reason of the exercise of the right of way, these may be shown up to the date of the trial, and, if the easement is of a permanent nature, the question is how much at the time of the trial is the plaintiff’s estate diminished in value by reason of the existence of the encumbrance.

As it seems to a majority of the court that it does not appear upon what principles or rules of law the damages in the present case have been assessed, they are of opinion that there should be a new trial, but only upon the amount of the damages.

So ordered.