CASES

ARGUED AND DETERMINED

IN THE

SUPREME JUDICIAL COURT

OF

MASSACHUSETTS.

WALTER FARNSWORTH & another vs. CITY OF BOSTON.

Suffolk. March 6.- Nov. 25, 1878. COLT & SOULE, JJ., absent.

Under the St. of 1873, c. 340, obliging the city of Boston to take certain lands to abate a nuisance, and providing that any person, whose land is taken, may apply for a jury, by petition to the Superior Court, to assess his damages, a mortgagee of land so taken, who is out of possession, has not such an interest in the land as to entitle him to join with the owner of the equity of redemption in the petition for a jury.

PETITION to the Superior Court, filed originally by Walter Farnsworth alone, on December 18, 1876, for a jury to assess damages, for the taking by the respondent of a parcel of land in Boston, under the St. of 1873, c. 340.

On December 20, 1876, the Union Institution for Savings, which held a mortgage on the petitioner's land, dated June 2, 1871, and then due, filed, in the Superior Court, a petition setting forth its interest as mortgagee, and praying that it might join as a party in the petition filed by Farnsworth; and the court, against the respondent's objection, allowed this to be done.

At the trial in the Superior Court, before Putnam, J., it ap peared that on September 1, 1873, the board of aldermen of the city of Boston passed an order establishing the grade of the

Northampton Street District, so called, in Boston, in which the petitioner's land was situated, in order to secure complete drainage, to prevent nuisances and to preserve the public health of the city; and on September 5, 1873, an order, passed by the city council, directing the owners of lands in the said district to raise the grade of their lands, was approved by the mayor.

The city entered upon the lands, raised the grade thereof, and assessed the cost thereof to the owners; and on March 8, 1875, the petitioner notified the city that he was dissatisfied with the assessment on his land, and offered to surrender his estate to the city. In November 1876, the city council passed an order taking the petitioner's land, which was approved by the mayor, and was recorded in the Suffolk registry of deeds on December 1, 1876; and Farnsworth, not agreeing with the city upon the damage done to him by such taking, filed this petition.

Farnsworth and the mortgagee agreed that the amount due upon the mortgage at the time of trial was $131,000.

The judge instructed the jury, if they should find the value of the land to exceed $131,000, to find for the Union Institution for Savings in the sum of $131,000, and for Farnsworth any excess of value above that sum; and, if they should find the value of the land to be less than $131,000, then to apply the whole to the claim of the Union Institution for Savings.

The jury found the value of the estate at the time of the taking to have been $142,381.83, and assessed the damages of Farnsworth at $11,381.83, and of the Union Institution for Savings at $131,000; and the judge reported the case for the consideration of this court.

If any of the rulings were erroneous, the verdict was to be set aside, and a new trial to be ordered; otherwise, judgment was to be entered on the verdict.

J. P. Healy & E. P. Nettleton, for the respondent.

J. P. Treadwell, for Farnsworth.

J. A. Maxwell, for the Union Institution for Savings.

LORD, J. The case of Breed v. Eastern Railroad, arising in Essex County, in 1840, and reported 5 Gray, 470, note, decides that, when land is taken for a public purpose, the damages for the taking are to be assessed to the owner of the equity of redemption, without regard to the question whether or not there

are mortgages upon it. The principle upon which that case is settled is decisive of this.

Whether, under the St. of 1873, c. 340, a taking because of a surrender by the owner is to be deemed a taking under the right of eminent domain, is not very material, inasmuch as the statute provides that the assessment of damages and the general mode of proceeding therein shall be determined in the same manner as when taken under such right, although, as matter of form, words implying purchase and sale are used.

It is wholly inconsistent with the objects and purposes of the act, that anything less than the whole estate should be surrendered by the person having the right to surrender. The proceed ing is in the nature of a proceeding in rem, a proceeding against the land. By express provision of the statute, all necessary expenses incurred in the filling "shall constitute a lien upon the lands filled, and a lien upon all buildings upon such lands, and may be collected, and the city collector may purchase such lands, or lands and buildings, in behalf of the city; all as is provided by law for the collection of taxes upon real estate, and in case of land sold for taxes." Then follow provisions in relation to the mode of payment by "the owner of any estate so assessed," and proceedings for revision of the cost by a jury, which are not material in this case.

Section 4 provides that "any person dissatisfied with the assessment of the expense of raising the grade of his said land may give notice thereof to the city council within six months after such assessment is made, and the city shall thereupon take said land," and, after providing for the mode of recording a description of the land as so taken, the statute proceeds, "and the title to lands so taken shall vest absolutely in the city."

A mortgagee not in possession has no claim for compensation for injury to the land when lawfully used by any party. A mortgagee thus out of possession cannot be assessed for the improvements, nor does the statute recognize in him any estate in the land which he can surrender.

A mortgagor and mortgagee have no joint interest in lands as against third persons; nor have they distinct interests. Their estates are identical. As to the rest of the world, except the mortgagee, the entire estate is in the owner of the equity of

redemption; but, as between him and the mortgagee, the latter is the owner, not of another, but of the same estate. Having no joint interest, they cannot join, or be joined, in an application to assess the damages for the taking. Having no distinct estates in the same land, they cannot surrender severally. Whether the owner of a life estate and the remainderman can join in a proceeding of this kind, it is not necessary to decide. Entirely different considerations would affect that relation. But, in case of mortgagor and mortgagee, the owner of the equity is the only person entitled to surrender, though there may be one or many mortgagees of the same estate. See Ballard v. Ballard Vale Co. 5 Gray, 468, and Paine v. Woods, 108 Mass. 160. In equity, the damages assessed to the owner of the land would be deemed to be land, and the mortgagee could follow such assessed damages and have the same applied to the payment of his mortgage. Pond v. Eddy, 113 Mass. 149.

When these parties were before us on a former occasion, the only question presented and decided was, whether the present petitioner had a right, under the facts reported, to surrender his interest to the city and claim compensation therefor. Farnsworth v. Boston, 121 Mass. 173. The extent of the interest was not before the court, nor was it decided by the court. There are dicta in the opinion which would apparently limit his right to the value of the equity of redemption, although it is expressly said that "it is not necessary to consider what are the rights of the mortgagees to surrender." There would perhaps be greater difficulties in determining what is the value of an equity of redemption as between the city and the petitioner alone, than would exist if mortgagor and mortgagee were joint petitioners. It would be a trial between two parties, neither of whom could rightfully represent the mortgagee, upon whom the finding of the jury could not be binding.

The view which we take has been recognized, and its correctness sanctioned by the general railroad law of 1874. St. 1874, c. 372. That statute provides, that in all cases of the assessment of damages for lands taken for the construction or maintenance of a railroad, if the land for which damages are claimed is subject to mortgage, all mortgagors and mortgagees shall be made parties to the proceeding. §§ 76, 77. It recognizes the fact that, though