226 Mass. 210 | Mass. | 1917
The St. 1901, c. 508, authorized the city of Lynn, for the purpose of providing an additional water supply, to take by purchase or otherwise the water of- Ipswich River and its tributaries. Under this statute the city made, an admittedly valid taking of land for the purpose of establishing and maintaining a pipe line to be used in conveying the water to Lynn. Subsequently, in October, 1916, the city purported to take by right of eminent domain an easement in a strip of land twenty feet wide extending about fourteen hundred feet through the plaintiff’s land, for the purpose of constructing and forever maintaining a power transmission line, with necessary poles, wires and other apparatus, for conducting electric current from Lynn to a pumping station on the banks of the Ipswich River at North Reading. The pipe line and the proposed transmission line do not coincide; and the land taken for the pipe line nowhere touches the plaintiff’s premises. The question for determination is whether this attempted taking of an easement in the plaintiff’s land is authorized by the 1901 statute.
The language of the statute is, that the City of Lynn “may take, by purchase or otherwise, all lands, rights of way and easements
It is an established rule of interpretation that statutes authorizing the exercise of the power to take private property without the consent of the owner are to be construed with reasonable strictness. The authority of the city to take the plaintiff’s land by eminent domain exists only in case the Legislature has delegated that power in express terms or by necessary implication; it is not to be inferred from vague and doubtful general phrases. Lewis, Em. Dom. (3d ed.) §§ 371, 388. The instant statute expressly empowers the city to take lands, rights of way, and easements necessary for (1) establishing filtration beds, (2) holding and preserving water, and (3) conveying water to any part of said city. The first two may be put one side. The third, according to the ordinary and natural meaning of the words used, contemplates a taking for the purpose of laying a pipe line such as the city already has established. It is difficult to find in this language authority to take additional land or an easement therein for the sole purposes of an electric power line to the pumping station.
The statute next authorizes the city to erect dams, buildings, fixtures and structures; but this is only incidental to the above mentioned express power, and must be exercised “on the land thus taken or held.” The remaining language, “and may make excavations, procure and operate machinery, and provide such other means and appliances as may be necessary for the establishment and maintenance of complete and effective water works,” is too vague and general to indicate a grant of a power to take land by eminent domain, in view of the rule of interpretation already mentioned.
When the statute is viewed in the light of contemporaneous legislation, and we consider the uniform legislative policy with reference to the maintenance of lines for the transmission of electricity, it seems clear that the Legislature did not intend by the instant
In the light of this history we do not believe that the Legislature intended by the language quoted from the instant statute to give to the city of Lynn an unrestricted, roving commission to erect poles and wires in the neighboring towns. Certainly they did not intend by such indefinite language to empower the defendant, for the purpose of constructing the transmission line, to take the plaintiff’s land. At that time the Legislature never had allowed the taking of land for electric transmission lines, so far as we have been informed. And when they did make provision for such a right by the consolidating act, St. 1914, c. 742, § 128, the existence of the right was restricted to special and defined instances, and made subject to the approval of the board of gas and electric light commissioners, after a public hearing. It is to be noted, also, that the early legislative policy of attaching restrictions, regulations, and safeguards to grants of rights to erect and maintain transmission lines for electricity, has been continued down to the present. See
In our opinion the alleged taking of the plaintiff’s land by the city of Lynn, was not authorized by St. 1901, c. 508; and the decree of the Superior Court must be affirmed, with costs.
Ordered accordingly.