229 Mass. 185 | Mass. | 1918
The selectmen of Bourne granted to the several respondents or to their assignors, under R. L. c. 91, § 104, licenses to plant, grow and dig oysters in the town of Bourne. The canal company filed its location in the registry of deeds for the county of Barnstable on July 8, 1907, and the dredging of its canal was begun on August 8,1909. These proceedings under St. 1899, c. 448, § 16, are for the assessment of damages to the respondents’ oyster
In the Superior Court, by agreement of the parties, the cases were referred to three commissioners under a rule providing that their reports should be final on the facts. At the hearing on the confirmation of the reports, the petitioner requested the court to rule in each case:
“1. That upon the findings of the commissioners the respondent was not entitled to recover and that judgment should be entered in favor of the petitioner;
“2. That, if the respondent was entitled to recover at all, the measure of recovery was limited to the oysters in the soil and the spat or oyster seed attached thereto and that no damages should in any event, be allowed on account of impairment in the value of the grants.”
These requests for rulings were refused and the petitioner excepted. The judge ordered, subject to the petitioner’s exceptions, that the reports of the commissioners be confirmed and judgment entered for the respondents.
1. The St. 1899, c. 448, § 16, provides that the canal company shall pay damages “ In case of any injury to any fishery, including oyster fisheries, caused by said canal company by the deposit of excavated material, or in any other way, ... to the owner, or licensee of said fishery.” Under § 24, provision is made for the recovery of damages where lands are taken by condemnation for the location of said canal. The petitioner contends that the respondents are not entitled to damages for the impairment in value of any license applicable to flats within the location of the canal. No land of the respondent was taken and no damages are asked for on account of the taking of land under § 24. The damages recovered were for injuries to the respondents’ oyster fisheries; some of which, according to the commissioners’ findings, were within, and some outside, the location of the canal. (In using the word “location” the commissioners probably had in mind the approaches of the canal that extended seaward from high water mark.) Section 16 was intended to apply where these oyster fisheries were injured in the authorized construction and completion of the canal as a navigable waterway, either by the “deposit of excavated material, or in any other way,” although the
2. The further contention of the petitioner is that no damages should be allowed for oyster seed or oysters in the ground unless placed there before July 8, 1907, — the date of the filing of the
3. What we have said disposes of the petitioner’s claim that damages for the injury to the respondents’ grants should not be determined as of August 8, 1909. No damage was done to these grants until that time. The commissioners rightly considered the value of the property at the time it was injured.
4. In the case of John F. Perry and others the respondents were inhabitants of the town of Bourne. John F. Perry was granted licenses numbered thirty-four, thirty-five, and thirty-six, Wallace J. Perry was granted licenses numbered thirty-nine and forty-one, and Harry E. Perry was granted licenses numbered twenty-eight and forty-three, to plant, dig and grow oysters in Bourne Neck flats. They carried on the culture of oysters on these grants as partners. The petitioner argues that these licenses are void because of the formation of the partnership which involved the transfer of an interest in the enterprise which amounts to a partial assignment, that under R. L. c. 91, § 107, no assignment of such a license shall be made without the written consent of the selectmen, and the licensee who violates the provisions of the statute relating to the growing of oysters shall forfeit his license. R. L. c. 91, § 110. Whether the formation of a partnership whereby the partners carried on the business “jointly and as partners and kept no separate account of the oysters on the different grants” was. such an assignment as required the written consent of the selectmen, or that the failure to obtain this consent' was a violation of the statute and worked a forfeiture of the licenses, are questions which we do not decide. Even if we assume in favor
In the case where the original respondents are deceased, we understand that no question is now raised that the administrator and executors properly were permitted to prosecute the petition. Webster v. Lowell, 139 Mass. 172.
Exceptions overruled.