247 Mass. 522 | Mass. | 1924
This suit in equity is brought in their individual names by four of the seven trustees of the Independent Agricultural School of the county of Essex (hereinafter called the school) against the three county commissioners of the county of Essex who are the three remaining trustees of the school and who also constitute the board of trustees of the tuberculosis hospital of the county of Essex (hereafter called the hospital), being both such trustees by virtue of their office as county commissioners of the county of Essex.
The salient facts alleged in the bill are that the school was established under the provisions of St. 1912, c. 587, for the purpose of affording instruction in agriculture, and that to enable the execution of that object a large tract of land was in 1913 bought in fee free from all conditions in the name and with moneys of the county of Essex, which was appropriated to the uses of the school, all under the direction, management and control of the trustees of the school. Another parcel of land adjacent to the school land was taken by eminent domain by the county of Essex and a tuberculosis hospital was built and is being maintained thereon under the provisions of St. 1916, c. 286. The defendants, without the consent or knowledge of the plaintiffs and without right, have entered upon a portion of the land bought and used for the school, for the purpose of constructing and maintaining thereon cesspools and filter beds with connecting drains to afford treatment and disposal of the sewage of the hospital, to the irreparable damage of the school, and the defendants refuse to remove or to cease the use of the same.
The defendants demurred to the bill on divers grounds. The only ground now argued is that the county of Essex is a necessary party to these proceedings. The demurrer must be sustained on that ground. The legal title to all land and property used in connection with the school is in the county of Essex. The same is true of all land and
Although service of process in proceedings to which a county is defendant commonly must be made on the county treasurer, G. L. c. 223, § 37, yet the county commissioners are by statute authorized to represent the county. G. L. c. 34, § 14. The individuals composing the county commissioners of the county of Essex are named as defendants in this suit. The case has been heard at length before a master and by a judge upon confirmation of his report and for entry of final decree. The facts seem to have been fully developed. While it would have been appropriate for the county to be represented by counsel, different from those representing the trustees of the hospital, we cannot see that substantial rights have been affected. Bringing in the county of Essex as a party would seem to be a formal matter. Therefore, amendment may be allowed making the county of Essex a party. Worcester Board of Health v. Tupper, 210 Mass. 378, 383.
The case is considered on the footing that such amendment is made. The findings of the master in the absence of a report of the evidence must be accepted as true unless mutually repugnant or contradictory and plainly wrong.
The cost of the hospital has been approximately $1,500,-000, and a considerable number of patients are there treated constantly. Apparently some system of sewage disposal is essential to the valuable use of the hospital. The filter bed system of the hospital occupies about three acres of the land purchased for the school. It had been to some extent under cultivation for school purposes. It is located about two thousand feet from the school buildings on a remote, rough and gravelly portion of the school farm. At times an odor comes from the filter beds offensive to those at work near by, but few people are likely to be affected. Interference with ice production for the school is so slight as to be negligible. The plaintiffs had no actual knowledge of the construction of the sewerage system, although reasonably active oversight by them would have disclosed it. On the other hand, the defendants in doing this work resorted to the use and occupation of land acquired by the county under the statute for the school without the consent or knowledge of the school trustees, and a very large part of that use and occupation, being that for filter purposes, with full knowledge of the objections of the plaintiffs. Before the construction of the filter beds, which were to take the place for sewage purification of previously constructed
The general pare and control of the school property is vested in the trustees of the school. Although there is no express provision to that effect in St. 1912, c. 587, such is the necessary implication of the powers conferred upon the trustees. They are not constituted a corporation but their function as public officers of the county gives them that control. The general supervision and control of county property vested by G. L. c. 34, § 14, in the county commissioners does not give them these powers over the school property. It would be incompatible with the broad duties imposed by the statute on the trustees of the school to permit the county commissioners to have dominating control of the property devoted to the school. Such construction of the two statutes would or might involve constant conflict of authority between two boards of county officers. Moreover, the county commissioners as trustees of the school possess the influence in the control and management of the school property thought by the Legislature requisite for harmonious administration and due regard to the point of view naturally represented by the county commissioners. The land in question was bought solely for the school under the definite provisions of a statute enacted with single reference to this particular school. The land thus was appropriated to this one public use. While all private rights in the land were extinguished by the acquisition of an unconditional title in fee, the public rights as thus defined were single, not general. The appropriation by the county commissioners as trustees of the hospital of land bought for and dedicated to the uses of the school against the protest of the trustees of the school was without legal right. Explicit legislation to that end would have been necessary before such authority could have been exercised. Higginson v. Treasurer & School House Commissioners of Boston, 212 Mass. 583, 591.
The plaintiffs, however, aré members of a public board acting for the county of Essex within a restricted sphere. They are not clothed with authority to litigate with the
Decree reversed. Demurrer sustained..
Leave granted to amend by adding the county of Essex as a party defendant. If and when such amendment is made, decree to be entered dismissing bill on the ground that the plain- . tiffs have no right to maintain the bill.