Cecconi v. Rodden

Devens, .1. 1. It was held in McLaughlin v. Cecconi, 141 Mass. 252, that McLaughlin, who held the estate formerly of Paine S. Higgins, was the sole owner of the wall between his estate and that of the plaintiff in this action, and that the wall was wholly on his land, although Sarah Oecconi, through her grantors, had acquired certain prescriptive rights to use the same. The plaintiff now brings this action for a breach of the warranty in the deed made to her by the defendants. It is not disputed that the entire wall is upon the land of McLaughlin, and that the plaintiff’s only rights to use the same are those limited rights acquired by prescription. The contention of the defendants is, that, as the land conveyed by them to the plaintiff was bounded upon the land of McLaughlin, and as this is now shown to include the wall, the monument thus referred to governs the description given in the conveyance, and limits it. But the question is not what the defendants actually conveyed, but what they undertook and by their deed purported to convey, and such a construction wholly disregards important words used by them in the description contained in their conveyance, to which their warranty applies. The language in their deed, referring to the disputed boundary, is: “Northwesterly by land and building now or late of Paine S. Higgins,” ('which estate is now that of McLaughlin,) “ on a line through the centre of the partition ■ wall, forty-two feet nine inches.” It is more than probable that, when this deed was made, the defendants believed that they owned to the centre of the partition wall, and that the land of Higgins began at a line drawn through this centre. They therefore definitely made that line the boundary of the land conveyed, and although it is now shown that the land of Higgins included the .whole wall, the words which define this line control and govern in their attempted grant. It is not necessary, in order to reach this conclusion, to invoke the [169] familiar rule that the words in a deed, where there is ambiguity, are to be taken most strongly against the grantor. 2. A witness at the trial was asked whether he had made “ estimates of the expense of erecting the present building upon the lot as it is described in the deed to the plaintiff, and also an estimate of the expense of erecting on the land which the plaintiff actually owns; that is, throwing out the one half of the partition wall and land under it, so as to get at the difference between these two expenses.” The witness was permitted to answer this, subject to the defendants’ exception. What the reply was is not stated, nor, if this was the sole question and answer on this point, can it haye been of the slightest importance. Whether he had or had not made estimates was of no consequence, in any aspect of the cas.e, unless he afterwards testified as to them. There is nothing to show that he did, or that the inquiry went any further. Exceptions to a question to a witness cannot be considered, which do not show how the question was answered, and that such answer was in some way unfavorable to the party excepting. Kershaw v. Wright, 115 Mass. 361. Pennock v. McCormick, 120 Mass. 275. 3. It appeared at the trial, that the plaintiff, before her eviction from the four-inch strip of land, had erected on the partition wall, to the extent of the four inches which she claimed to own, an additional story, which she was afterwards compelled by McLaughlin to remove. This was done after she had received notice, and during the pendency of a bill in equity to restrain her from building on the wall. The defendants asked the court to rule that she could not recover for the value of this new and additional structure. The court properly ruled that, “ if the plaintiff acted in good faith in the erection of that additional story, believing that she was the owner of this strip of land, as well as the other land, about which there is no dispute, in assessing damages the jury should give the plaintiff the value of that portion of the structure which stood upon this strip of land, and that value would not be simply the value of the material, having in view how that part of that structure was related to the rest of the building upon the land.” The general rule for damages in ease of an eviction of a grantee by a paramount title, when there is a covenant of warranty, [170] has long been settled to be the value of the estate at the time of the eviction, including therein the value of the improvements which the evicted tenant has placed upon the land. Gore v. Brazier, 3 Mass. 523, 543. Norton v. Babcock, 2 Met. 510, 518. White v. Whitney, 3 Met. 81. Nor should any exception be made to this, as the defendants urge, because before the tenant had completed her improvements a bill in equity to restrain her had been brought by McLaughlin, claiming to be the owner of the land. She had a right to rely upon the defendants’ warranty, to believe that the estate conveyed was lawfully hers, and, acting in good faith, to proceed with her improvements. Boyle v. Edwards, 114 Mass. 373. 4. The ruling that there was no covenant in the deed to the plaintiff, that the intermediate wall was a party.or partition wall, was given at the defendants’ request. It cannot have injured the defendants that the court added that the plaintiff had acquired certain rights by prescription to the use of the wall for the old building. The report of the case of McLaughlin v. Cecconi, ubi supra, was in evidence. 5. The defendants urge that the court erred in refusing to instruct the jury that the wall, which was a four-inch wall, could not be used for building purposes, “ and that the plaintiff could not recover of the defendants any damages for loss of building rights on said wall.” St. 1885, c. 374, §§ 44-46. It is not quite clear what was intended by this request. The statute referred to requires that walls for buildings of thirty feet in height shall be eight inches thick. The partition wall was in fact eight inches thick, although only four inches were on the land assumed to have been conveyed to the plaintiff. It does not appear that the plaintiff had claimed any damages for loss of building rights in the wall, and a correct rule had already been given to the jury as to the damages to which the plaintiff was entitled. Apparently the defendants desired to have the court inform the jury that a wall four inches in width only could not be used for the construction of a building as high as that of the plaintiff. It was in this sense that the court understood it, and the fair interpretation of the judge’s remark on this subject is, that such is the case, but that it does not therefore follow that the land is not of substantial value. Exceptions overruled.