199 Mass. 530 | Mass. | 1908
The principal questions argued in this
The records of the" board of aldermen and of the common council are substantially alike in regard to the action upon the statute, and both show that it was “adopted ... by a two-thirds aye vote.” While these records are not so explicit as they ought to be, their meaning seems to be that the act was adopted according to its terms. To give it effect, it was necessary to adopt it by a two thirds vote of all the members of each branch of the city council, voting by yeas and nays. A reasonable presumption is to be made in favor of the action of a legislative body. The language of a record is to be construed favorably to the validity of the action, if it is fairly susceptible of such a construction. Wells v. Battelle, 11 Mass. 477, 481. Briggs v. Murdock, 13 Pick. 305, 316. Wallace v. First Parish of Townsend, 109 Mass. 263. The present case is very similar to McCormick v. Bay City, 23 Mich. 457, in which the record was held sufficient.
A question of more difficulty is whether the statute can be construed as authorizing a taking of the water of the brook without something in writing which purports to work a change of title to the water. We have no doubt of the power of the Legislature to authorize a taking of property under the right of eminent domain without the use of any writing, by an act in pais which purports to be done under the authority of the statute, and which clearly indicates an intention permanently to appropriate the designated property to a public use. Of course, to give validity to a taking, there must be a provision for compensation to the owner, after sufficient notice, formal or informal, and an opportunity of being heard. See Appleton v. Newton, 178 Mass. 276. The statute before us is silent as to the manner of taking the waters, and there is no requirement in terms that any certificate or other writing be filed in the registry of deeds. After the provision for taking the waters of the brook for a water supply, the city is authorized “ for this purpose to take, by purchase or otherwise, any lands on or around
Under the present statute, we are of opinion that the taking of a deed of land on the brook, with the right to lay a pipe and construct an aqueduct, and the erection of a dam and the construction of a reservoir on the brook, and the diversion of the
As this is an action of tort for an unlawful diversion of the water, the plaintiff cannot recover in it the compensation to which he was entitled under the statute.
Exceptions overruled.