Philadelphia & Reading Coal & Iron Co. v. Salem Terminal Corp.

Braley, J. The Eastern Railroad Company in 1864 acquired title to certain lands and flats on the water front of the harbor in the city of Salem, which were substantially rectangular, and extended from Derby Street southeasterly to tide water. ' November 11, 1874, it demised and let to the plaintiff for a term of twenty years with a covenant for extension, the northeasterly portion at an annual rental of $5. The remaining lands and flats lay to the northeast and southwest of the leased premises. In 1890 the Boston and Maine Railroad succeeded to the entire title of the lessor, which in 1923 it conveyed to the defendant. The extent of the leasehold, and the plaintiff’s rights thereunder are the questions for decision. By St. 1872, c. 194, which was rightly admitted in evidence, the Eastern Railroad Company had been authorized to construct a wharf or wharves either solid or on piers across the flats in front of its estate, running toward the northwest side of the harbor channel for such distance from the present line of the shore as might be approved by the board of harbor commissioners, “and shall have the right to lay vessels at the ends and sides of such wharf or wharves and receive dockage and wharfage thereon . . . The company having notified the commissioners of its intention to build a wharf partly on piles and partly solid, was licensed on June 28, 1873, “to proceed and build said wharf, partly on piles and partly solid” in conformity to a plan in the office of the board, a copy of which forms part of the master’s report. The board also granted another license October 24, 1874, which was admissible. This license however differed from the first license. It sanctioned among other provisions the construction of a triangular section of the wharf shown on the plan filed with the commissioners as the “proposed addition.” The plaintiff at the date of the lease was constructing upon the northeasterly side of the land and flats a pile wharf or bridge extending from Derby Street thirteen hundred feet, and a pier at the seaward end one hundred and three feet in width and seven hundred feet in length. “And whereas it has been agreed that a triangular addition shall be made to the said Wharf and Pier, and that the terms and Conditions — 445 — as finally settled on which the said Structure is being erected and is to be held and used shall be reduced to writing,” the combined lease and agreement under which the plaintiff occupied was executed and delivered. The demise in the first clause of the instrument after a description by courses and distances of the triangular section or addition, is followed by the words, “Together with the Structure now being erected . . . and the rights and privileges appurtenant to the use of the Said Structure as a Wharf and Pier.” The plaintiff covenanted to continue and complete with reasonable dispatch the construction of a pile wharf adapted for the support of railroad tracks with a substantial pier at the seaward end suited for the loading and unloading of vessels, and furnished with coal pockets, and to keep the wharf and pier in suitable repair. The covenant further provides that the structure as now located is- nearly completed excepting the triangular section “before mentioned,” being with the addition to be made thereto of that section described as follows: “A pile wharf or bridge extending Seaward from . . . Derby Street One Thousand Feet in length, and twenty six feet in width, thence extending a further length of three hundred feet, and widening regularly upon the South Westerly Side thereof to the width of one hundred and one feet, and a substantial Pier at the Seaward'end of the said Wharf one hundred and three feet in width and seven hundred feet in length.” It is further provided in the fourth clause, that during the term or any extension, the lessor is to have the exclusive possession and use of the portion of the pier and of the triangular addition to the wharf or bridge included within the space colored red on the horizontal plan referred to in the second clause, and the right to use the pile wharf or bridge extending to the pier for the movement of cars to and from the portions thus set apart, for which the plaintiff was to be paid a yearly rental, and one half of the expense of keeping the wharf and bridge in repair. The first extension was April 7,1893, for a further term of twenty years. The second extension was July 10, 1912, wherein clause four, just described, was abrogated, and the plaintiff after July 1, 1912, was given the exclusive posses — 446 — sion of the wharf and pier for twenty years with the privilege of a further extension for a similar period upon notice to the lessor. The indentures of extension were executed by the Boston and Maine Railroad, which with the consent of the plaintiff had filled solid the part of the structure or bridge built on piers extending thirteen hundred feet from Derby Street. The slope of the filling on the northeasterly side projected beyond the side lines, and was riprapped for the entire distance. The riprap on the southwesterly , side which also projected beyond the slope, extended from Derby Street to a point on the wharf section, where it ended one hundred and twenty feet distant from the junction of that point with the pier. The flats covered by the slope of the filling and the riprapping were within the line of the railroad corporation’s abutting ownership when the work was done. .The structure, however it may have been described, had now become by the voluntary acts of the successor in title of the lessor a filled structure or wharf for its entire length, protected by riprap, at the end of which on the southwesterly side, and running to the pier section, it had a cap log with ring bolts to which lines from a vessel could be made fast. The result of what had°been done is shown by the plan, Exhibit sixteen, forming part of the record. The railroad tracks from Derby Street to the pier section are also delineated. The coal pockets and apparatus are <5n the northeasterly side of that section which is adapted only for the unloading of vessels. It is contended by the defendant, that the lease does not purport to give to the plaintiff all the rights to dock and lay vessels which the lessor could have exercised. As the structure is described, it consists of two distinct parts, a pile wharf or bridge and a pier at the seaward end. The triangular section is treated as part of the pile wharf or bridge rather than as part of the pier. The lease contemplated that the pile wharf or bridge, including the triangular section, should be used for railroad tracks for the transportation of coal and incidental uses and not for the loading and unloading of vessels thereon. The master finds, if material, that the right to dock or lay vessels in the triangular section is not — 447 — necessary for the natural use of any part of the structure. But the lease after the description of this section immediately recites, “Together with the Structure now being erected and to be completed as hereinafter provided,” with the rights and privileges appurtenant to the use of said structure as a wharf and pier, and thereafter in so far as material, the words “Wharf,” “Pier” and “Structure” are interchangeably used. The fifth clause expressly provides, “that the taxes chargeable against the site hereby demised . . . upon which the said Structure, Wharf or Bridge and Pier is to be completed” shall be paid by the lessor, but the taxes chargeable against the “structure itself shall be paid by the” lessee. And by the sixth clause the lessée is to keep “said wharf and Pier in proper and suitable repair as a Railroad Wharf and Pier,” and to pay one half the expense thereof. It is “ to load at its own cost and by its own servants upon cars furnished by the” lessor, “all coal which it may receive at said Wharf and Pier.” Under the last extension, the indenture refers to the premises, as the side of a certain wharf and pier as described in the lease, which the plaintiff was to erect, and has erected at its own sole cost and expense, known as ‘ ‘ Salem wharf. ’ ’ The license of the commissioners to wharf and fill solid, issued on the application of the lessor, under which the wharf and pier in question were projected, also describe the premises as “a wharf, partly solid and partly on piles.” The lease and the indentures of extension may be construed as one instrument by which the defendant is bound. If not at variance with rules of law, the intention of the parties found in the language used, the conditions shown by the lease, and the indentures, controls. And the demise in the absence of express restrictions carried an implication, that the lessee was to have all that was necessary to the enjoyment of the leasehold in so far- as the lessor had power to give it. Child v. Wells, 13 Pick. 121. Haven v. Adams, 4 Allen, 80, 92. Ripley v. Knight, 123 Mass. 515. Lipsky v. Heller, 199 Mass. 310. Arafe v. Howe, 228 Mass. 46, 50. Grennan v. Murray-Miller Co. 244 Mass. 336, 339. The triangular parcel, even-if treated as the defendant contends, as distinct, was by the terms of the second exten — 448 — sion in the sole and exclusive possession of the plaintiff. If its use and occupation is limited to the location of the railroad tracks, the plaintiff for a distance of one hundred and twenty feet on the southwesterly side of the wharf is deprived of its use for the mooring or docking of vessels of every description permitted by the depth of tide water. The right to lay vessels at the “ends and sides of such wharf ” conferred on the Eastern Railroad Company under St. 1872, c. 194, and the license of the commissioners, passed in so far as necessary to the plaintiff. Forbush v. Lombard, 13 Met. 109. Fitchburg Railroad v. Boston & Maine Railroad, 3 Cush. 58, 87. Davis v. Atkins, 9 Cush. 13. And the wharf built conformed substantially to the license. The triangular parcel moreover cannot be read out of the lease. If considered as the leasehold, all appurtenant rights and privileges are granted. They also would pass by implication. Kent v. Waite, 10 Pick. 138, 141. Atkins v. Bordman, 2 Met. 457, 464. The master’s conclusion that the leased area comprised the triangular addition, the wharf, the pier, and the structure, is supported by his subsidiary findings. It is also found on admissible evidence, that for some years the plaintiff used the space in question for docking small vessels, or lighters of shallow draft, and that such use was still feasible, even if under present conditions in “the coal business in the vicinity of Salem there is no demand for such use in connection with that business and there was no evidence ... of any demand for such use for any other business.” The plaintiff’s rights of property have not been lost by the fact, that at present their exercise may be inexpedient or unnecessary. The construction by the defendant of the proposed sea wall running diagonally to the leased premises from the defendant’s land, and the driving of piles in the prosecution of the work, will materially restrict the open water front below the end of the riprap to which the plaintiff now has unlimited right of access and of use. It accordingly should not be compelled to accept damages for such permanent interference, but is entitled on the record- to injunctive relief. Siegel v. Starzyk, 238 Mass. 291, 297, 298, and cases there collected. — 449 — The,final decree, however, required the defendant to stop the construction of the sea wall at a point which 'will leave an open channel of only forty feet in width for the mooring and docking of vessels. The plaintiff, who appealed, contends that it should be seventy-five feet. The master, on evidence properly received, reports, that, if the channel is limited to forty or fifty feet, it will be necessary to bring in a lighter by pushing with a tug, and warping it in by lines, and it can be taken out only by a tug with a stern fine. “This is the proper method of handling such boats in narrowspaces. The customary and usual method, however, of handling such a boat where there is no limit of space is to use a tug lashed to the boat upon its quarter — that is, the bow of the tug is lashed alongside the stern of the other boat for about one third of the length of the other boat. If this method is used in the space in question and this space is to be used for its entire length” a channel of seventy-five feet will be necessary from the “southwesterly side of the ‘triangular section’at right angles thereto at the point at which the outside line of piles driven by the defendant meets said ‘triangular section,’ such width tapering to a width of at least forty feet at a point opposite the southeasterly end of the riprap, measured at right angles from the southwesterly side of the ‘triangular section.’ I find that this latter method of using the space in question is reasonable and proper if the plaintiff has the right to dock or lay vessels therein.” The plaintiff can exercise its appurtenant rights as previously defined in any lawful manner, and the scope of this finding in the opinion of a majority of the court should not be restricted in favor of the defendant. It follows, that the interlocutory decree overruling the defendant’s exceptions, and confirming the report, is affirmed. But the final decree must be modified in accordance with the opinion, and when so modified it is affirmed with costs. Ordered accordingly.