Choate v. Town of Sharon

259 Mass. 478 | Mass. | 1927

Rugo, C.J.

This is a suit in equity wherein the plaintiffs seek to restrain the defendant from entering upon land alleged to belong to them, and to recover damages. The case was reported by the trial judge upon the sole question whether his ruling was correct to the effect that the taking made by the defendant on May 15,1924, was valid. A subsidiary ruling as to the exclusion of evidence also is reported.

The facts found by the judge with respect to all matters must be accepted as true and final, because the evidence on which they are based is not reported.

At a town meeting of the defendant held on December 18, 1923, upon a sufficient article in the warrant, it was voted by more than a two-thirds majority “That the Town does hereby authorize and instruct the Selectmen to purchase or take by eminent domain . . . the following described easement. . . . The right to locate, construct and forever maintain a drain for a portion of North Main Street in said town over, through or under the following described parcel together with the drainage of any brook or water course from said North Main Street as may naturally flow over said parcel.” Then follows a description by bounds, courses and distances of specific land of the plaintiffs, together with an appropriation of money therefor. St. 1923, c. 266.

The vote of the town was legal on its face and there is nothing in the findings of fact to impeach its validity. As bearing on the binding force of this vote of the town, the plaintiffs offered evidence tending to show that, before the town meeting, easements had been acquired by the town from owners of land adjoining the land of the plaintiffs to do the very things sought to be acquired by the easement over the plaintiffs’ land, and that the warrant committee of the town, whose duty it was to study the various articles in the warrant and to make written report on each article by notice mailed to the voters before the meeting, made no mention of the easements already acquired, although knowing of them. It does not appear that there was any failure of duty on the part of the warrant committee, nor that the fact that other easements had been acquired was of essential importance with respect to the taking of the easement over land of the plaintiffs. Moreover, the whole matter was before the town at the meeting and all material facts could have been elicited by inquiry and debate, when the article was under consideration, although no mention was made of such easements. The deliberate vote of the town could not be set aside by reason of the facts set forth in the offer of proof. The case in this respect is distinguishable from Loving v. Westwood, 238 Mass. 9, and also from Wood v. Milton, 197 Mass. 531. There was no error in the exclusion of the evidence offered.

There had previously been filed a plea which the court had found not true because of an earlier insufficient taking, but upon that hearing the judge had found that there was no bad faith in respect to the town meeting and the other action by the town. That finding rightly should stand as final as to matters in the case as to which it was material. The judge was not required to go over that ground again, but could accept it for what it was worth in connection with the other facts found by him on evidence presented at the hearing on issues raised by the answer.

The instrument of taking was in form and execution in conformity to the requirements of G. L. c. 79, §§ 1, 3, 6, and was filed at the place and within the time there specified. The circumstance that there had been an earlier and ineffectual attempt to make a taking, invalid because not effected in the manner provided by said c. 79, did not exhaust the authority conferred by the vote of the town nor prevent the selectmen from making a valid taking pursuant to its direction within a reasonable time, regardless of their previous abortive effort. Since the earlier attempt to make a taking was void because of failure to comply with statutory requirements, it was as if nothing had been done and there was no bar to a valid taking. Williams v. Hartford & New-Haven Rail-Road, 13 Conn. 397, 410, 411. Leheigh Valley Railroad v. Dover & Rochaway Railroad, 14 Vroom, 528, 531. Trustees of Cincinnati Southern Railway v. Haas, 42 Ohio St. 239. Ashton Vale Iron Co. Ltd. v. Bristol Corp. [1901] 1 Ch. 591, 600. See Brechwood Real Estate Co. v. Springfield, 258 Mass. 111, 113. An award of damages of $54 was made in connection with the order of taking, and check therefor sent to the plaintiffs and by them returned. The order did not refer to the trees upon the land described. The taking was of an easement only and not of the fee. There is nothing to indicate that the exercise of the easement would interfere with the trees. The failure to refer to them does not invalidate the taking.

The main attack upon the validity of the talcing is that the vital words describing the nature and extent of the easement seized, namely, the right to locate, construct and forever maintain “a drain for a portion of North Main Street,” are so vague and indefinite as not to constitute a valid exercise of the power of eminent domain. The instrument of taking of an easement must be construed in connection with the physical features of the land in the neighborhood, in the light of which it was framed. The parcel of land described by bounds, courses and distances and in which the easement was taken, was a natural shallow gully with a well defined irregular channel through it. • The judge in his careful and exhaustive findings of fact shows that the portion of North Main Street lying southerly of the area described in the taking, from near the center of the town slopes gently downward to the property taken. He concludes with the statement in substance that upon all the evidence he finds that the defendant, at the time of filing the bill, by means of catch basins and underground pipes and a culvert, was intercepting and gathering surface water on that portion of North Main Street from the crest of the hill to the land described and such surface water as reached North Main Street over abutting private lands and intersecting streets, and was discharging the same through its pipes and culverts upon the plaintiffs’ land described in the taking, and that from a considerable part of the area so drained surface water would not naturally flow in the gully over the land taken from the plaintiffs, and that by means of catchbasins and pipes there had been an increase in volume and an acceleration in the flow of surface water in said gully. Without narrating further the facts found, it is enough to say that the words of the taking of the right to “a drain for a portion of North Main Street” over the land described, when read in the light of the physical features of that street and its connecting streets and the natural means of drainage adopted for such streets, mean a right to drain the territory actually drained over the land taken as shown by the findings. The talcing is not too vague or indefinite, but is susceptible of certainty when applied to North Main Street as then constructed and maintained. Of course the exercise of the power of eminent domain must be so definite and specific in terms as to identify the land or easement taken with the certainty and precision required in a deed. Lajoie v. Lowell, 214 Mass. 8, 9. Excelsior Needle Co. v. City Council of Springfield, 221 Mass. 34, 37. Byfield v. Newton, 247 Mass. 46, 57. See in this connection Diamond v. North Attleborough, 219 Mass. 587, and Dupuis v. Fall River, 223 Mass. 73. The taking here assailed conforms to that requirement for the valid exercise of eminent domain. Hurd v. General Electric Co. 215 Mass. 358. Bailey v. Woburn, 126 Mass. 416. Eames v. Collins, 107 Mass. 594. Pettee v. Hawes, 13 Pick. 323, 326. Otter Tail Power Co. v. Brastad, 128 Minn. 415, 418-421. See Turner v. Gardner, 216 Mass. 65, and cases there collected. Cases upon which the plaintiffs rely, like Suffolk County Telephone Co. v. Gammon, 113 App. Div. (N. Y.) 764, and New York & New Jersey Telephone Co. v. Broome, 21 Vroom, 432, are plainly distinguishable. The ruling that, upon the facts found, the defendant acquired an easement in and over the plaintiffs’ land described in the taking of May 15, 1924, to do the things sought to be enjoined, and that the plaintiffs are not entitled to injunctive relief, was right.

The assessment of money damages for injuries sustained by the plaintiffs prior to the taking also was permissible and proper procedure. Newburyport Institution for Savings v. Puffer, 201 Mass. 41, 47.

In conformity to the terms of the report, final decree is to be entered in accordance with the finding and order.

Ordered accordingly.