CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT, JANUARY TERM 1870, AT BOSTON. [CONTINUED FROM VOL. CIII.] PRESENT: HON. REUBEN A. CHAPMAN, CHIEF JUSTICE. HON. HORACE GRAY, JR., HON. JOHN WELLS, PROPRIETORS OF LOCKS AND CANALS ON MERRIMACK River vs. NASHUA AND LOWELL RAILROAD COMPANY. A specification of nontenure and disclaimer, pleaded with the general issue, to a writ of entry, is falsified by proof of occupation of the demanded premises by the tenant with a permanent building, although such occupation is by a mistake of boundary and without intention to disseise. The misappropriation by a railroad corporation of land taken by right of eminent domair for the location of the railroad cannot be set up as working a forfeiture of the franchise on a writ of entry brought by the owner of the fee; but the demandant may maintain the writ to establish his right in the land and recover damages or mesne profits for the unauthorized use of it. The surrender by a railroad corporation into the exclusive use and occupation of private traders or manufacturers for their trade or manufactures, as tenants for rent, of land taken by right of eminent domain for the locatior of the railroad, and buildings erected thereon VOL. VII. 1 Proprietors of Locks & Canals v. Nashua & Lowell Railroad Company. by the corporation as freight-houses or engine-houses, is a misappropriation of the land, which entitles the owner of the fee to maintain a writ of entry to establish his right therein and recover damages or mesne profits for the unauthorized use of it; although the corporation derives advantages in its freighting business from the .arriage of merchandise for the tenants and the receipt and delivery of it at these buildings instead of at the regulat station-houses, and the buildings remain adapted to the purposes for which they were erected, and the corporation does not intend to permanently abandon the use of the premises for the railroad. WRIT OF ENTRY dated June 28, 1869, to recover two lots of and in Lowell, marked respectively A and C on a plan of a large tract of land, which was made part of the agreed facts on which the case was submitted to the determination of the full court, substantially as follows: The demandants were seised in fee simple of the tract of land, and except as hereinafter stated have not been disseised or dispossessed of any part of it. In 1838, the tenants, by authority of their charter, St. 1836, c. 249, and the general laws relating to railroads, and without the consent of the demandants, filed their location over and took a part of the tract, including the whole of both lots A and C, except a narrow strip forming part of lot A and marked B on the plan, and paid to the demandants damages regularly assessed for the taking, as in such case required by law. No question is made as to the regularity of their proceedings in this location and taking. Across the land thus taken they constructed and have ever since maintained their railroad; but no portion of their road-bed was ever built, or of their tracks ever laid, in either of the lots A and C. In 1838, the same year in which they took the land, they built upon it a wooden freight-house, which they placed partly on lot A; and they continued to use the building as a freight-house until 1846, when, having established a freight depot elsewhere in Lowell, they ceased to use it in that manner. In 1851 they entered into an agreement with the firm of Blanchard & Coggin, flour and produce dealers, to fit it and lease it to them for a warehouse for that business. Accordingly they changed its position, moving it so that its principal doors, which formerly faced towards the railroad track, were made to face towards a public street, and built an addition to it, and made certain alter Proprietors of Locks & Canals r. Nashua & Lowell Railroad Company. ations in its interior; but "the building, thus altered, was not rendered unfit for a freight-house, but could be used as well for that purpose now as before the alteration." As thus changed in position, the building covered lot A. "In making said alterations, a portion of the building and of the addition thereto was placed outside of the location of the railroad, on other land of the demandants, which is that portion of lot A marked B on the plan; and said building has without consent or license of the demandants continued thereon ever since. When the alterations were completed, in 1851, the railroad corporation leased the building and the land under the same, and necessary to the enjoyment thereof, including the whole of lot A, to Blanchard & Coggin for their private and exclusive use and occupation, for the carrying on therein of their said private business, and have ever since continued and still continue to lease the premises to them and others, persons who have succeeded to the business of Blanchard & Coggin, for their exclusive use and occupation for their said business and trade, and receiving rent of them therefor. And Blanchard & Coggin, and the other persons who succeeded them in their said business, ever since 1851 have under lease thereof from the railroad corporation had and held the exclusive use and occupation of the premises for the carrying on therein of said private business, paying rent therefor to the .essors. And the premises are not, and since 1851 have not been, otherwise used for railroad purposes. Said lease to Blanchard & Coggin and their successors was not in writing." The flour and produce, which Blanchard & Coggin and their successors stored on the premises, were "all brought over the railroad, and a large portion of them unloaded directly from the cars into the building, rendering it unnecessary for the railroad corporation to deposit them in its own freight-house, but the portion not so unloaded is deposited in the freight-house of the railroad corporation." "At the time of the commencement of this action, and for several years before, the premises have been in the exclusive use and occupation of the firm of Page, Kidder & Co., who succeeded Blanchard & Coggin as tenants at wil of the railroad corporation and paying as rent therefor $400 per Proprietors of Locks & Canals v. Nashua & Lowell Railroad Company. year. Before the commencement of this action the demandants demanded of Page, Kidder & Co. the possession of the premises, and they refused to surrender the same." Under date of August 19, 1867, the demandants' agent sent a letter to the railroad corporation, calling attention to the premises as occupied by Page, Kidder & Co., asserting that such use was for a purpose to which the demandants had a right to object, but adding that "they have, however, no desire to interfere with the present use, if their rights can be protected and they can receive a fair share of the income;" to which the agent of the railroad corporation replied that he was instructed by the directors to say that the use to which the premises were put did not seem to them inconsistent with or an infringement on the rights of either party, and that they declined to pay to the demandants any part of the income of the premises, and he added: "In order that it may distinctly appear that your rights are not to be prejudiced by the action of the railroad corporation, I am further instructed to say that the premises in question are held in reserve for railroad use only, it being the intention of the railroad corporation to occupy them for such purposes exclusively; and they hereby disclaim any intention or expectation of acquiring by use and possession any rights therein not secured them either by location or purchase." No notice was ever given to the railroad corporation, before the commencement of this action, that any part of the building was on land outside of the location of the railroad," and the railroad corporation did not know that fact until after the commencement of the action, the said buildng, when moved, having been, by mistake and without intending so to do, placed outside of the location, on B; and at the term at which the action was entered the tenants in the action specified nontenure and disclaimer as to said B." In 1847, nine years after their taking of the demandants' land the tenants built a brick engine-house for their locomotive engines, which covered the whole of lot C, and extended beyond it upon land owned by the tenants and not embraced in the plan. Inside of this building they dug ash-pits and walled them up with brick and mortar, laid a brick floor, built turn Proprietors of Locks & Canals v. Nashua & Lowell Railroad Company. tables, and laid tracks which extended outside of the building and connected with the main tracks of the railroad. In 1860, having previously ceased to use the building as an engine-house, they entered into an agreement with the firm of Cole, Nichols & Wilson, iron-founders, to fit it and lease it to them for a foundry. Accordingly they removed the walls of the ash-pits and filled up the pits, removed the brick floor and the turn-tables and "other fixtures adapting said building to be used as an engine-house," and built an addition to the building for the purpose of adapting it to the use, occupation and business of Cole, Nichols & Wilson; and on April 1, 1861, they gave Cole, Nichols & Wilson a written lease of the premises for five years, at an annual rent of $400, which stipulated that "said lessees may make alterations at their own expense in the buildings and grounds embraced in this lease, as may be necessary to convert the premises into a foundry." Under this lease, Cole, Nichols & Wilson "took possession of the premises, erected thereon large furnaces for melting iron, and set up other fixtures and machinery therein, usual in iron foundries, and they, the survivors of them, (Wilson being dead,) continued in the exclusive use and possession thereof, as a general iron foundry, for the carrying on therein of their private business and trade of mak ing iron castings, during the whole of the term of said lease; and ever since the expiration of said term the railroad corporation has continued to let by parol the same premises and the exclusive use thereof to said Cole & Nichols, and the latter have, as lessees of the railroad corporation, continued in the exclusive use and occupation of the same for the purpose of their private business aforesaid, paying to their lessors rent therefor; and since 1860 lot C has not otherwise been used or occupied for railroad purposes." "No part of the building which is situated on lot C was altered when leased, or since it was leased, the ash-pits and turn-tables being in that part of the building situated on land owned in fee by the lessors; and no erections or changes have been made in that part of the building situated on the demanded premises, nor is said part of the building used by the lessees for any machinery or other erections. A larg |