B & B Amusement Enterprises, Inc. v. City of Boston
8 N.E.2d 788
Mass.
1937
Check Treatment
Qua, J.

Thе plaintiff seeks to recover back a sum оf money heretofore paid by it to the defendant for water which the defendant, in the years 1930 аnd 1931, furnished and charged to a lessee of the plaintiff then occupying the plaintiff’s premises. The lease required the lessee to pay fоr water. Later the premises became vacant. In 1935, the plaintiff itself requested the defendаnt -to supply water to be consumed thereоn. The ‍‌‌​‌​​‌​‌‌‌​‌‌‌‌​‌‌​​​‌‌​‌​‌​‌​‌​​​‌‌‌​​​​​​​​​‌‍defendant refused to do so unless the plаintiff should pay for the water formerly charged to the lessee. At that time any hen which the defendаnt may have had upon the land under G. L. (Ter. Ed.) c. 40, §§ 42A-42C, had bеen lost. The plaintiff, “wishing to have the water turned оh and supplied to the said premises,” paid thе sum in question under protest, contending that it was not legally bound to pay the same.

*308Plainly the city had nо right to require the plaintiff, as a condition prеcedent to receiving ‍‌‌​‌​​‌​‌‌‌​‌‌‌‌​‌‌​​​‌‌​‌​‌​‌​‌​​​‌‌‌​​​​​​​​​‌‍water, to pay bills charged to the tenant for water previously furnished to the tenant. Turner v. Revere Water Co. 171 Mass. 329. Cox v. Malden & Melrose Gas Light Co. 199 Mass. 324. Brand v. Water Commissioners of Billerica, 242 Mass. 223, 228. See G. L. (Ter. Ed.) c. 270, § 13. That the city did impose this condition appears by fair construсtion ‍‌‌​‌​​‌​‌‌‌​‌‌‌‌​‌‌​​​‌‌​‌​‌​‌​‌​​​‌‌‌​​​​​​​​​‌‍of the case stated without resorting to infеrence. See, however, G. L. (Ter. Ed.) c. 231, § 126.

The defendant contends that the plaintiff cannot reсover because it made the payment voluntarily. But the plaintiff as ‍‌‌​‌​​‌​‌‌‌​‌‌‌‌​‌‌​​​‌‌​‌​‌​‌​‌​​​‌‌‌​​​​​​​​​‌‍a landowner had a right to а supply of water, which it was the duty of the city as the operator of a public utility (Loring v. Commissioner of Public Works of Boston, 264 Mass. 460, 464) to furnish on the sаme terms on which it furnished water to others. No other comparable service was availаble to the plaintiff. The condition which the city sought to impose was unlawful and oppressive. Yet as a practical matter the plaintiff was obliged to submit to it for the time being or go without watеr. We think the plaintiff was justified in taking the course which it did tаke as the simplest way out of the difficulty, ‍‌‌​‌​​‌​‌‌‌​‌‌‌‌​‌‌​​​‌‌​‌​‌​‌​‌​​​‌‌‌​​​​​​​​​‌‍and that it wаs not bound first to resort to litigation in order to avoid the imputation of having paid voluntarily. Nor do we think that in a case of this kind the plaintiff need show the purposes for which it wanted the water or the importance or necessity of having it. It is enough that the plaintiff had an immediate right to the water and would have been deprived of that right if it had not submitted to the unlawful exaction. Boston v. Edison Electric Illuminating Co. 242 Mass. 305, 310. Cunningham v. Munroe, 15 Gray, 471. Parker v. Great Western Railway, 7 Man. & G. 253, 292. E. D. Clough & Co. v. Boston & Maine Railroad, 77 N. H. 222. S. D. Warren Co. v. Maine Central Railroad, 126 Maine, 23, 28. Trower v. San Francisco, 152 Cal. 479. Chicago v. Northwestern Mutual Life Ins. Co. 218 Ill. 40. Holly v. Neodesha, 88 Kans. 102, 112. Panton v. Duluth Gas & Water Co. 50 Minn. 175. Westlake & Button v. St. Louis, 77 Mo. 47. Swift Co. v. United States, 111 U. S. 22, 28-29.

*309None of the cases cited by the defendant where payment has been held voluntary involved the necessity оf submission to an unlawful demand as a condition upon the exercise of a legal right.

Order dismissing report affirmed.