Galeano v. City of Boston

Braley, J. The interest of the petitioners as lessees and that of the landowner were not commensurate, as their demise covered only a portion and not the whole of the premises. Because of this diversity, when treated as entire, whatever damages were shown to have been caused to the estate by the lowering of the grade of the street on which it abutted were to be apportioned between the owners of the respective interests rather than held by a .trustee for their benefit. R. L. c. 51, § 15; c. 48, §§ 17, 18, 20, 22. Edmands v. Boston, 108 Mass. 535, 547. Boston v. Bobbins, 121 Mass. 453, 456. Stark v. Mansfield, 178 Mass. 76, 82. Emery v. Boston Terminal Co. 178 Mass. 172, 185. In the assessment of damages while by [67] R. L. c. 48, § 22, the estate is to be treated as indivisible, this provision was not intended to mean, that if considered as the sole property of the reversioner no injury appears to have been suffered, then the lessees cannot recover, although if the estates are considered separately, the leasehold had been damaged. Providence, Fall River, Newport Steamboat Co. v. Fall River, 187 Mass. 45, 49, Until determined by the condition of the title shown to exist at the trial it remained uncertain whether § 17 of this chapter or § 20 was applicable. Willard v. Boston, 149 Mass. 176, 178. If the lease had been coextensive with the fee, the petitioners would have held an estate for years within the meaning of § 17, and would have been within the provisions of § 18, which enacted that notwithstanding damages are to be assessed for the whole property and held by a trustee, who is to pay the income to the tenant for life, or for years, and upon the termination of their estate then to pay the principal to the reversioner, “ any damage special to a separate estate therein . . . shall be awarded in the same proceedings separately.” Boston v. Rollins, wli supra. It is not to be presumed that a different rule was to be applied under § 22, as both sections dealt with the award or apportionment of damages which may be recovered, even if under one they are held in trust as to damages assessed for the whole property, while under the other they are paid to the parties. If the jury find that any of the parties have not sustained damages they are required to set forth by verdict that as to him no damages are awarded, but while such a finding may include the owner of the fee, the jury are not precluded from awarding damages to other parties according to their interests. There was not only abundant evidence that the market value of the property treated as a single parcel of real estate had been increased, rather than diminished, but the owners neither offered evidence nor made any claim for damages upon the ground relied on by the petitioners. The leasehold interest was a distinct independent estate occupied and used as stores, access to which during the progress of the work, lasting from four to five weeks, could have been found either to have been so interrupted as to render their use of little value, or to have been wholly cut off. If after the commencement of the various proceedings to recover damages a settlement had been [68] made with the landowners, or their petition had been waived, the petitioners’ claim would not have been thereby extinguished, for upon a petition duly brought for the impairment of the demised estate during this time, damages, if found to have been special and peculiar, would have been recoverable. Dana v. Boston, 170 Mass. 593, 595. Putnam v. Boston Providence Railroad, 182 Mass. 351. Bailey v. Boston Providence Railroad, 182 Mass. 537,540. Sheehan v. Fall River, 187 Mass. 356, 361. Hyde v. Fall River, 189 Mass. 439. But neither this right nor the remedy to enforce it is lost if for the benefit of the public to avoid multiplicity of suits an estate is treated as the sum of all the interests represented by the separate petitions. Edmands v. Boston, ubi supra. While there is but one trial in which all who are entitled to compensation must participate, yet the rights of each are to be considered and determined separately. It could have been found upon the evidence that although there had been no injury to the freehold, to whose owners consequently no compensation could be awarded, the entire damage had fallen solely upon the leasehold interest, and therefore the petitioners were entitled to be apportioned, or awarded, the total amount of the damages thus sustained. Accordingly it must be held that the ruling given at the trial “ that, if there was no damage, permanent or temporary to the owner, the lessees could not recover,” was erroneous. Exceptions sustained.