These are two petitions in which the petitioners, who are husband and wife, seek damages for the taking by the city of Springfield on or about January 21, 1907, for the purposes of a water supply under the authority of St. 1906, c. 317, of land in Russell, Westfield and Gran-ville, and of waters of the Westfield Little River, and its tributaries, at and above the designated point of diversion. They also seek to recover other damages to their property and expenses. A bill of exceptions was filed by the petitioners and another by the respondent.
The first petition was enterеd January 20, 1909, and the second October 16, 1911. The docket entries show that on November 14, 1913, the cases were referred to an auditor. On March 17, 1925, the petitioners filed a motion for stay of proceedings before the auditor to enable the court to determine the validity of the taking, and its jurisdiction under the petitions. The petitioners then requested the court to hear evidence in support of their contention that the taking was invalid. On June 6, 1925, the petitioner Vincent E. Barnes filed a motion for discharge of the auditor alleging several reasоns therefor. On June 19, 1925, both motions and the requests to hear evidence as to the invalidity of the taking were denied by a judge who ruled that it was not open to the petitioners to contend in these proceedings that the taking of the property set forth in the petitions was invalid and illegal. Exceptions saved to these orders and
On May 22, Í928, a verdict on the petition first brought was rendered assessing damages for Vincent E. Barnes in the sum of $13,680.99 and for Ellen L. Barnes in the sum of $22,801.64. In the second case, subject to the petitioners’ exceptions, a verdict for the respondent was returned by direction of the court.
The ruling of a judge of the Superior Court made in 1925, to the effect that the petitioners are precluded from contending in these proceedings that the taking of the petitioners’ property set forth in the petition was invalid and illegal, as well as his orders on the motions then decided, the exceptions to whiсh were not perfected, cannot now be questioned. See Common Law Rule 51 of the Superior Court (1923); Brooks v. Shaw,
The petitioners are seeking to have a jury assess their damages in accordance with the provisions of the act authorizing the taking. By the allegations in the petitiоn they have admitted for the purposes of these proceedings the taking, its validity, the regularity of the proceedings, and the constitutionality of the act. G. L. c. 231, § 87. Flagg v. Worcester,
There was no valid objection to the jurisdiction of the court. St. 1906, c. 317, § 7, provides that all damages under the act shall be ascertained and recovered in the manner pro
The excepting party has the burden of showing error. In the case at bar there is no statement in the petitioners’ bill of exceptions that it contains all the evidence relating to the various questions raised nor that it contains all parts of the charge relating to the subject matter referred to in the parts to which exceptions were taken. Barnes v. Loomis,
The orders denying motions for continuance and for suspensions of the hearings must stand. They were filed many years after the first petition was entered and were addressed to the discretion of the court. Noble v. Mead-Morrison Manuf. Co.
Within the area of the taking there appears upon a plan introduced by the petitioners a lot designated "E. L. Barnes 49 acres.” The material facts concerning this parcel so far as the bill of exceptions discloses are that a warranty deed purporting to convey it to the petitioner Ellen L. Barnes in 1901 was executed by Mary Spelman and her husband, Edward Spelman, who joined therein to convey his rights as tenant by the curtesy; that Vincent E. Barnes paid off a mortgage on the property and gave a check for the balance of the purchase price to Mary Spelman’s son for her; that Barnes later discovered a "cloud” on the title and spoke to Edward Spelman about it who said that he did not claim any interest in the land. He executed a quitclaim deed to Ellen L. Barnes, dated February 6, 1907, conveying all his right, title and interest in the land described in the deed of Mrs. Spelman. This deed was offered in evidence and excluded by the judge subjеct to the petitioners’ exception. They also excepted to the rulings that the petitioners had no title to this forty-nine acre lot and that it was not to be considered by the jury. The bill of exceptions does not state the ground of these rulings and it may be that the evidence disclosed that neither of the Spelmans had any title to the property, or that evidence justifying the ruling was introduced relating to the deeds themselves or their execution. But if it be assumed that Edward Spelman had title to the property and conveyed it to Ellen L. Barnes by the deed dated February 6, 1907, the ruling excluding the deed was right.
The fact that Edward Spelman joined in the first deed to release curtesy in his wife’s real estate created no title to the fee in the grantee by estoppel. Bruce v. Wood,
The judge ruled that the votes on January 21,1907, divested the petitioners of and took from them all their right and title in and to the waters of Westfield Little River and its tributaries and the real estate described in the votes. The petitioners contend that under the taking, if valid, title to the property did not pass until April 16, 1907, when, they assert, a description and plan were first filed in the registry of deeds. In support of this contention they have attached to their brief what purports to be a recorded copy of a plan of the area taken. No such plan is referred to in the bill of exceptions, and, so far as appears, no contention was made at the trial that the taking became еffective on the later date. The petitioners allege in their petitions that the taking was made on January 21, 1907. Documents attached to the brief but not made a part of the bill of exceptions cannot be considered by the court for any purpose. The act under which the taking was made required that a plan drawn to scale of land taken be filed and recorded in the registry of deeds for the county in which the land is situated, within ninety days “after taking.” It appears from the bill of exceptions that votes taking the waters and land were recorded in the registry of deeds on January 21, 1907, the date on which they were passed. The first petition filed alleges that the. plan annexed to it is a plan of the petitioners’ land taken as recorded in the registry of deeds and served by copy on the petitioners. Upon this plan are the words “Map to accompany Description of Land, included in Taking by Springfield Board of Water Commissioners Jan. 21,1907. Scale 1 inch = 800 feet. Land taken enclosed within tinted Line.”
St. 1906, c. 317, § 7, provides that all damages under the act shall be ascertained and reсovered in the manner provided by law for the laying out of highways. In this law as then enacted there was no provision to the effect that the date of filing or recording the description or plan should be the time when the taking occurs. In this respect the act differs from the provision of the present eminent domain
A plan introduced by the petitioners shows within the area of the taking a lot designated “Spellman 60 acres,” apparently designated on the plan as located in the town of Russell. The judge left to the jury the question whether either petitioner had title to this lot, and instructed them, in substance, that if they found that the petitioner Ellen L. Barnes held the title, no land in the town of Russell was included; that any conveyance of that lot did not convey land in the town of Russell. “It may go to the boundary line of the town of Russell' but the land itself does not comprise, however it may be described, any land that is in the town of Russell.” So far as the bill of exceptions discloses no evidence was introduced to prove that the plan was accurate nor why the lot came to be designated or outlined as shown on the plan. A certified copy of the court record shows that the jury found that nеither petitioner had title to this lot. Upon the record
The failure of the respondent to file an answer does not estop it from contesting the petitioners’ title. Section 22 of the new chapter 48A, added to the Revised Laws by St. 1918, c. 257, § 187, (see now G. L. c. 79, § 22,) first required an answer to be filed in this kind of action, and created a new sеction relating to procedure. Nicklas v. New Bedford,
Request 39, to the effect that each petitioner was entitled to recover damages for his proportionate share of the land and waters considered as an indispensable part of a unit or system of water supply, was properly denied. It did not appear that the property of either was an indispensable part of a unit or system of water supply. Each was entitled to recover the fair market value of his land, and evidence of its value for the special purpose of a water supply might properly be excluded. Sargent v. Merrimac,
The judge declined to rule in accordance with the petitioners’ thirty-seventh request that the value of the petitioners’ land and waters for any special purpose may be considered with a view of ascertaining what the property is worth in the market for any use for which it will bring the most. The petitioners’ damages are not to be measured by
The judge declined to rule in accordance with the thirty-sixth request that, where land borders on a natural stream, each of the proprietors owns the fee to the thread of the stream and has the right to the natural flow of the stream and to the benefit of it as it passes through his land for all the useful purposes to which it may be applied. This request fails to take into consideration the rights of others who have common rights in the stream. Watuppa Reservoir Co. v. Fall River,
The request numbered twenty-one is based upon the contention that the real estate standing in the name of Mrs. Barnes is really the property of her husband and that he and she are entitled to recover damages as though they owned the property jointly. The petitioners did not own any of the land jointly or as tenants in common eaсh with the other. Whatever either owned he owned in severalty so far as the other was concerned. Under the petitions, a joint title might have been shown. When it appeared in evidence that the ownership was in severalty no objection to maintaining the petitions by both was raised, and none is now urged. Each is entitled to damages in severalty for the taking of the property which he owned. Boston Chamber of Commerce v. Boston,
The evidence to show the comparative cost of developing. and maintaining a water and power supply between this and other similar sources of supply, and to show the cost to the
There is nothing in the record to show that the evidence excluded as to land outside the taking was relevant or material. No damages could be recovered because land outside the taking was posted by the board of health or because such other lands were brought within the provisions of R. L. c. 75, § 124, now G. L. c. 111, § 167, and other laws and rules regulating contamination of water used as a city supply. So far as appears the only damage to such other land of which complaint was made was the result of subjecting it to such regulations. Commonwealth v. Sisson,
The contention that compound interest should be allowed cannot be maintained. Arnold v. Maxwell,
The exception to the directed verdict on the second petition filed has no merit. The petition was filed October 16, 1911. Section 7 of the act authorizing the taking requires all proceedings for the recovery of damages to be brought within two years after the right of action accrued, but allows no damages, for water taken until actual diversion. There is nothing in the record to justify a finding that this petition was brought within the period of limitation fixed by the statute.
The exclusion of testimony of the value of the property as a source of water supply was not erroneous. The fact that the petitioners’ witnesses had been permitted to testify that the property was valuable for this purpose did not require the judge to admit further evidence as to its value for this special purpose.
All of the petitioners’ exceptions argued, including those not specifically mentioned, have been considered and in none of them do we find reversible error.
The only question raised by thе respondent’s exceptions relates to the assessment of damages, and is contained in the
It does not appear that any exception was taken to the statement of the judge that Vincent E. Barnes is the owner of only one undivided half interest in the tract on the north side of the river. It is stated in the respondent’s bill of exceptions that the land on the north side of the river was the only land within the taking to which Vincent E. Barnes had any title; that the only title of record in Vincent E. Barnes was to one undivided half of this land; that the land was wild and uninhabited, and that there was no evidence of acts of occupation upon it. He is limited in his rights to the title gained by conveyances to him. Farwell v. Rogers,
Until changed by statute all tenants in common were required to join in actions for injuries to the common estate.
The part of the ruling requiring the jury to assess damages as though Vincent E. Barnes were the sole owner of the entire tract was right. Edmands v. Boston,
By G. L. c. 231, § 124, this court is given authority to direct the еntry of such judgment as shall accord with its determination “if satisfied that it has before it all the facts necessary for determining the question in dispute.” All necessary facts for determining the rights of the parties on this issue have been found by the jury, and although the respondent’s exception must be sustained, a new trial is not necessary, but judgment is to be entered for Vincent E. Barnes as upon a verdict for one half the sum found for him. Zink v. Foss, 221 Mass. 73. Matthews v. New York Central & Hudson River Railroad,
Petitioners’ exceptions overruled.
Respondent’s exceptions to the verdict for Vincent E. Barnes sustained.
Judgment is to be entered for Vincent E. Barnes as upon a verdict for $6,840.50, and for Ellen L. Barnes on the verdict.