Call v. County Commissioners of Middlesex

68 Mass. 232 | Mass. | 1854

Shaw, C. J.

We doubt very much whether, if the petitioner were right in matter of law, Ms remedy would be by mandamus. When a court of special jurisdiction decline acting at all, they may be required by a writ of mandamus to entertain a case within their jurisdiction; to consider it, exercise their jurisdiction, and render some judgment. But in general, this court will not direct them by mandamus what judgment to render, or to reverse a final judgment already entered. That is to be done on an appeal, or some proceeding in the nature of an appeal or writ of error. In a case like this, certiorari would seem to be the proper process to bring the doings of the county commissioners before this court, to determine whether they are erroneous or correct in matters of law. But this point was not argued, and therefore we do not express any opimon upon it.

But the question is, whether the petitioner was too late in making Ms claim for damages. TMs depends upon the act giving the remedy, the charter of the Essex Company, § 8 of which provides that “ any person who shall be damaged in his property, by said corporation, in cutting or making canals through Ms lands, or by flowing the same, or in any other way in carrying into effect the powers hereby granted, unless said corporation shall, within thirty days after request in writing, pay or tender to said person a reasonable satisfaction therefor, shall have the same remedies as are provided by law, for persons damaged by railroad corporations, in the thirty-ninth chapter of the revised statutes.” This reference indicates the general course to be pursued for the assessment and recovery of damages, when one party is permitted by public authority to erect a work which may occasion damage to another; though the cases are not strictly analogous, because the building of a railroad does not ordinarily cause damage to the land of others by flowing. The reasonable construction is, that the same course, as far as it is applicable to the subject matter, shall be pursued. Now, in turning to Rev. Sts. c. 39, §§ 56, 57, we find provisions for an application by the party injured to the county commissioners to estimate his damages, and that either party dissatisfied with their estimate may have a jury; and then comes § 58: “ No application to the commissioners to estimate damages for land or property hereafter to be taken, shall [except where the lawfulness of location is in dispute] be sustained, unless made within three years from the time of taking the same.” Does this limitation apply ?

The petitioner is precisely within the words of the act of incorporation; he is a person who, as he alleges, would sustain damage in his property, by said corporation, by flowing his lands. He therefore claims to have the remedy given to those whose lands are damaged by railroad corporations, by the works which they are authorized to lay down and construct on the lands of others. The damage done by railroads is seldom, if ever, done by flowing, but ordinarily by taking and appropriating the land. The same remedy then is given against this corporation for damage by flowing, which is given by the Rev. Sts. against railroad corporations for land taken. We think therefore that the limitation of time, within which the remedy is to be sought in the one case, applies to the other.

The term “ flowing lands,” has acquired a definite and specific meaning in our law. It commonly imports raising and setting back water on another’s land, by a dam placed across a stream or watercourse which is the natural drain and outlet for surplus water on such land. This is usually done to enable a party to raise a head of water for mill purposes, regarded by the law as beneficial to the public. Such dam may be authorized either by a general law, as in the case of the mill acts, or by specific legislative act, as in this act of incorporation. In either case, the damage to the landowner is intended as an indemnity, not for casual or occasional damages, which may be afterwards suffered, by a freshet or flood, but for all the damage he may suffer by all the flowing which may be caused by the erection of such dam. It is the erection of the dam, under the authority of law, which renders it immovable, and which may, and by reasonable estimate will, cause the lands of an owner to be more or less flowed, for which the law provides an indemnity. The right to apply for damages therefore accrues when the dam is complete and put into operation; and we are of opinion that the limitation commences and runs from that time. Heard v. Middlesex Canal, 5 Met. 81.

Petition for writ of mandamus dismissed.