283 Mass. 618 | Mass. | 1933
These four suits in equity and one action at law concern land and water used in connection with the water supply of the city of Springfield. The same person was appointed master and auditor who, after taking a view of the various properties involved, filed a comprehensive report in each case. The evidence is not reported. After the reports were filed the trial judge without objection heard evidence (which is not reported) and found certain facts in addition to those stated in the reports. Interlocu
Since the evidence is not reported, the findings of fact made in the several cases must be accepted as true.
I. The issues in all the cases are very largely determined by the validity, nature and effect of a taking of land, water and water rights made by the city of Springfield in 1907. An underlying and main contention of the plaintiffs is that the taking of land and of water rights of the plaintiffs was illegal on several grounds and that the defendants were therefore trespassers from the beginning and as such are liable to the plaintiffs in damages. That taking purports to have been made pursuant to St. 1906, c. 317, by an instrument in writing executed by the board of water commissioners of Springfield on January 21, 1907, and on that date and also on April 16, 1907, recorded in the registry of deeds. A plan was also filed with the description in the taking; it was referred to in the taking and copy of it is annexed to the report. Speedily after its taking the city made entry upon lands taken and expended large sums of money in the development of additions to its system of waterworks and the water was used as supplementary to its other sources of supply.
(1) The title of St. 1906, c. 317, was “An Act to authorize the city of Springfield to increase its water supply.” By § 7 provision was made for the assessment of damages
The first of the present proceedings was brought in 1920, the second in 1925, and the three others were brought in 1926. Thus it appears that the plaintiffs filed the petition for the assessment of their damages, a petition which has finally gone to judgment in their favor, eleven years before the first of the present group of proceedings was instituted. That petition admitted for the purposes of that proceeding “the taking, its validity, the regularity of the proceedings, and the constitutionality of the act.” Barnes v. Springfield, 268 Mass. 497, 503. The commencement and prosecution to final judgment of that petition for assessment of damages in the circumstances disclosed preclude the plaintiffs from making in the present cases the contentions as to the invalidity of the taking there held to be not open to them. A landowner, who contests the constitutionality of a statute or the regularity of the procedure under which his land appears to have been taken by eminent domain, is not obliged to select at his peril the correct remedy and be barred from damages if he fails in his other contentions. It is usual in statutes authorizing the exercise of eminent
(2) Considering on their merits the objections now urged by the plaintiffs, there is nothing to show that there was invalidity in the taking. It is too plain for discussion that St. 1906, c. 317, under which the taking by eminent domain was made violated no rights of the plaintiffs secured by Constitution of this Commonwealth or of the United States. The use for which the taking was authorized was public. All rights of landowners as to just compensation, notice, limitation for time of bringing petition for damages and otherwise were guarded. Frost Coal Co. v. Boston, 259 Mass. 354. The statute was duly accepted by the city and the board of water commissioners were authorized to make the taking. There was nothing to show want of authority on the part of the officers to act in behalf of the city. They were at least de facto officers and their title is not open to attack in these proceedings. Prince v. Boston, 148 Mass. 285. Sevigny v. Lizotte, 260 Mass. 296. The finding of the.master is categorical to the effect that the defendant caused to be recorded as to the lands here involved a description as certain as is required in a common conveyance of land and filed therewith a map drawn to scale of the lands taken and described, all in conformity to St. 1906, c. 317. This finding includes the point four hundred feet above mean sea level. Whether a description of land and water and water rights and a map delineating the same are definite when applied to the face of the earth is largely a question of fact. The description here assailed was chiefly by monuments or bounds most of which were exactly located. Although the description of this taking might have been more precise in some particulars, the finding cannot be pronounced erroneous. Kohlhepp v. West Roxbury, 120 Mass. 596, 599. Burnett v. Commonwealth, 169 Mass. 417, 425. All the waters of the river and its tributaries at a stated point were taken. The rights of the defendant under the taking were absolute no matter when exercised. Howe v. Weymouth, 148 Mass. 605. The necessity and extent
The taking was valid under a statute which violated no constitutional right of the plaintiffs.
These matters also have become res judicata by Barnes v. Springfield, 268 Mass. 497. The interlocutory decree overruling exceptions to the master’s report and confirming that report was rightly entered.
II. The plaintiffs contend that even though the taking be held to be valid there has been excessive use of the easements acquired in the land.
(1) The plaintiffs contend that the city has no right to use the water of the stream for the generation of electricity and the land for the installation of works, machinery and transmission lines for the sale of the electricity so generated. It was provided in St. 1906, c. 317, § 1, that the defendant might take the waters of Westfield Little River and use the same “for any and all purposes for which said city is or may be authorized to use water; and may take and hold, by purchase or otherwise, any lands” which its board of water commissioners “may deem necessary for any of the purposes of this act ... or for carrying out any of the powers and duties conferred by this act.” By § 2 the city was empowered to make extensive constructions including buildings, tunnels and other structures as well as dams and reservoirs. The words in § 1 empowering the city to take and use the waters for purposes for which it “is or may be authorized to use water” mean that such taking is not only for purposes for which authority has been conferred but also for those purposes for which authority may hereafter be conferred by the Legislature. Only in this way can the words “or may be” be given force and effect. This result follows from the familiar rule of statutory construction that every word of legislative enactments must be given weight. Commonwealth v. McCaughey, 9 Gray, 296, 297. Eaton, Crane & Pike Co. v. Commonwealth, 237 Mass. 523, 530. Paquette v. Fall River, 278 Mass. 172. The city was of course required by § 7 to pay any and all damages to persons injured by any act of eminent domain
A considerable amount of timber standing upon lands taken from the plaintiffs has been sold by the city to vendees who have cut and removed it and who are named as defendants in some of the proceedings at bar.
As to the constructions made by the city in connection with the electrical development and the cutting of wood and timber the master finds that “the work which was done by the city and the structures which were erected and the construction that was made and the cutting of timber by the city and by the Pecks, was necessary and proper as things to be done by the city under the provisions of c. 317 of the acts of 1906 and also under the provisions of c. 163 of the [special] acts of the year 1918.”
The fair implication from all the findings of the master is that the development of electrical energy from the fall of the water by the city was incidental to the main purpose of the taking, namely the increasing of its water supply. The situation then is that the Legislature by St. 1906, c. 317, § 1, authorized the city to take all the waters of the river for increasing its water supply and empowered it to use those waters not only for all purposes then authorized but
(2) The same considerations lead to the conclusion that the rights acquired by the city by the taking of land of the plaintiffs have not- been exceeded by the electrical constructions placed upon such land. Even if the city did not acquire by its taking a fee in the land taken, Harback v. Boston, 10 Cush. 295, it at least took such rights as were reasonably necessary to exercise all title acquired by it to the waters of the river. The purpose of the taking fixes the extent of those rights. That purpose was to enable the city among other matters to build all structures necessary to use the waters to the best advantage to the extent
No discussion is required to demonstrate that the development of electricity by a municipality for light, heat and power for the use of the general public is a function which may be conferred by a statute such as Spec. St. 1918, c. 163. It is a public use. This conclusion follows from settled principles. Opinion of the Justices, 150 Mass. 592; Opinion of the Justices, 155 Mass. 598, 605. Citizens' Gas Light Co. v. Wakefield, 161 Mass. 432, 439. Whiting v. Mayor of Holyoke, 272 Mass. 116, 119. See Opinion of the Justices, 237 Mass. 598; Duncan v. New England Power Co. 225 Mass. 155; Talbot v. Hudson, 16 Gray, 417.
The circumstance that Spec. St. 1918, c. 163, § 3, gave specific authority to the city as to taking by eminent domain lands and easements in furtherance of the powers therein conferred does not constitute or indicate a limita
(3) The taking of lands for purposes of a water supply is incompatible with the idea of divided control over that land. The necessities of the public welfare import exclusion of all others from use of the land and of that which grows thereon unless rights of that nature are excluded from the scope of the taking. The former owner has no right to trees or standing timber after unqualified taking such as here was made. The right of the defendant to sell the standing timber upon the land taken followed from the taking. Its rights passed to its vendees. Brainard v. Clapp, 10 Cush. 6, 11, 12. Boston v. Richardson, 13 Allen, 146, 159. White v. Foxborough, 151 Mass. 28, 40. Broderick v. Department of Mental Diseases, 263 Mass. 124, 127. There is nothing at variance with this conclusion in Agostini v. North Adams Gas Light Co. 265 Mass. 70, where the taking was for a different purpose, and the circumstances were quite distinct from those here presented.
For all these matters, the plaintiffs were entitled to recover whatever damages they sustained in their petition for damages, even though the acts of the defendant may not have occurred until after the filing of the petition. Boston v. Richardson, 13 Allen, 146, 159. Barnes v. Springfield, 268 Mass. 497, 509.
III. In the suit by Vincent E. Barnes against the city three parcels of land are described, two of which require separate consideration.
(1) One is described as containing thirteen acres. The master found that the plaintiff owned this parcel. It was taken by an instrument filed and recorded on December 16, 1908, but the plaintiff had no knowledge of the taking until shortly before bringing this suit in 1926. He had lived in Westfield where the land was located a great many years
(2) Title to another parcel of land described in this suit was at the time of the taking by the city vested in one Hallbourg. The procedure adopted in taking lands of the plaintiffs was followed in taking the Hallbourg land. Hallbourg filed a petition under St. 1906, c. 317, for damages sustained by him by the taking, damages were assessed and the amount thereof was paid to him by the defendant. The decision in the earlier part of this opinion to the effect that the taking was valid disposes adversely of the contention of this plaintiff that the subsequent deed to him of the Hall
As to several of these proceedings the defence is urged that the acts of the defendants of which complaint is made occurred after the institution of the proceedings. That might be a valid defence. Bartlett v. New York, New Haven & Hartford Railroad, 226 Mass. 467, 471. This decision, however, .rests upon the underlying rights involved and already discussed.
The force of other arguments urged in defence need not be examined. All the arguments put forward in behalf of the plaintiffs have been considered but they need not be discussed in further detail. It is not necessary to state in greater particularity the parties, their relations to the subject matter or the claims asserted in the several proceedings. The principles governing the rights of the several parties and the rights alleged have all been set forth. No sound ground for relief is shown in any of the proceedings.
. The result is that in the several suits in equity the interlocutory decrees are affirmed and the final decrees are affirmed with costs and that in the action at law the exceptions are overruled.
Ordered accordingly.