123 Mass. 498 | Mass. | 1878
The statutes passed by the Legislature, and the proceedings of the city of Worcester under them, for the purpose of supplying that city with pure water, have hardly been direct, plain and unambiguous. An examination, both of the acts of the Legislature and the proceedings of the city, is necessary to determine the rights of the parties in this controversy.
The first legislation to which our attention is called is the St. of 1854, c. 888, entitled, “ an act for supplying the city of Worcester with pure water.” It will be observed, in reference to this act, that it gives to the city of Worcester no right to any property without the consent of the owner. It not only gives no such right, but in two sections of the act such authority is, in words, expressly denied. Section 8 requires that the legal voters of the city shall, within sixty days of its passage, vote upon the question of its acceptance by the city, “ and if a majority of the votes so given upon the question shall be in the negative, this act shall be null and void.” The act was duly accepted at the legal meeting of the voters within the sixty days.
The next statute in date, upon the subject, is the St. of 1856, c. 189, entitled, “an act in addition to an act to supply the city of Worcester with pure water.” By this statute, the city of Worcester is authorized to take the waters of one or another of several streams, or from Quinsigamond Pond, at the election of the city council of the city, and was also authorized to “ take and hold land around the margin of either of said ponds, or around any reservoirs or water-sources which they may possess or create, in the valleys of said brooks, for the purpose of supplying the said city with pure water.”
Section 7 of this act provides that “ all damages which may be sustained by reason of the taking by said city of any of the ponds or brooks aforementioned, or of the water thereof, or the water-rights connected therewith, or of diverting any portion of said water from its natural channel into other channels, or of erecting and maintaining any dam or reservoir, or digging up any land, street, road or highway, and entering upon the same for laying, repairing and maintaining pipes, conduits, hydrants and other apparatus necessary thereto, shall be paid by the said city of Worcester to the individual or corporation injured, which
There are several peculiarities of this statute to which attention is necessarily called. In the first place, no mode is prescribed by which the city of Worcester shall manifest its purpose to take any estate against the right of the owner, nor the extent to which such right is exercised, nor is provision made for any notice to the owner, public or otherwise, of any purpose to take, nor of an actual taking of his property. It is further to be observed that no provision is made, unless it is to be inferred, for any damage for any land taken “ around the margin of either of said ponds, or around any reservoirs or water-sources.” This statute also was to be void, “ unless submitted to, and approved by, the voters of the city of Worcester, at meetings held simultaneously for that purpose, in the several wards, upon notice duly given at least seven days before the time of holding said meetings.”
It will be perceived that, unlike the former statute, which it was required should be accepted within sixty days, no limit for the acceptancé of this act is fixed, and, in point of fact, it was not accepted until the year 1871, so that no rights would be acquired under it before that .time. See Locke v. Selectmen of Lexington, 122 Mass. 290.
The next statute in the order of time is the St. of 1861, c. 118. The -bill of exceptions finds that this statute was “ in evidence,” but by whom introduced, or for what purpose, the bill of exceptions does not show. Nor is that important. The question which we are to consider is, what is its effect ? We cannot construe -this, as contended by the respondent, as an act giving force and effect to the St. of 1856 without its acceptance by the voters of the city. We think its true meaning and effect is, that it is simply an amendment of the St. of 1856, c. 189, to take effect when and if such act should become effectual by acceptance.
It is found by the bill of exceptions that every act which was done by the city of Worcester, which by any possibility could be construed into a condemnation of private property to a public use, was done prior to the passage of the St. of 1864, the orders of the city council having been passed on February 8, 1864, more than a month before the passage of the act. In this condition the rights of the parties continued, until the St. of 1871, o. 361. The city of Worcester had proceeded to introduce a supply of water, but there is nothing to show that the city took or claimed any rights under the St. of 1864, and subsequently to its passage. In 1870 or 1871, the city desired to enlarge its reservoirs and to take more water than it had been accustomed to take. It was quite natural, then, that the city, before taking an additional quantity of water, should examine into the extent of the rights which it had acquired, or which it had authority under existing laws to acquire. Such examination would disclose the fact that the St. of 1856, c. 189, had not been accepted by the city, and that the acts which had been done by the city, which were in the nature of taking private property for
In this condition of things, the St. of 1871, c. 861, was passed. It is quite certain, from the peculiar phraseology of that act, that it was passed in consequence of the doubt which existed, whether the city of Worcester had acquired any legal title to a property upon which it had made very large expenditures. The deficiencies in the previous acts were remedied. Provision was made for making certain the rights of the owners of the property, as well as of the city, by requiring the city to make “a description of the lands, ponds or streams of water so taken, a? certain as is required in a common conveyance of lands, and a statement of the purpose for which the same are taken, which description and statement shall be signed by the mayor of said city,” &c. The act also provides a remedy for the person whose property is thus taken, which remedy is different from, and undoubtedly a substitute for, that provided in the Sts. of 1856 and of 1864. It is not important to consider whether this act is a mere enlargement of the statute of limitations, because we think it is clear that the whole scope and authority of the act was, to give to the respondent the election to stand upon its rights as they then existed, or to retake any land or other property, zwhich it contends previously to have taken,) under all the pro-isions, restrictions, limitations and burdens of this act.
The language of the various sections is quite peculiar in many respects. Section 2 commences, “ The said city shall, within sixty days from the time its city council shall vote to take any lands or ponds or streams of water, by authority of this or any former act, file in the office of the registry of deeds for the county of Worcester a description of the lands, ponds or streams of water so taken, as certain as is required in a common conveyance of lands, and a statement of the purpose for which the same are
Section 3 provides the mode of compensation, and that, if the city and the owner of the land cannot agree upon the amount of damages, the owner or person injured “ may apply by petition for the assessment of his damages, at any time within three years from the taking of the said land, water or water-rights, as aforesaid, and not afterwards, to the Superior Court in the county of Worcester.”
Section 7 is conclusive upon the question whether this act was passed for the mere purpose of- enabling the city to do lawfully what it had theretofore failed to do in accordance with existing laws. That section is as follows: “ hiothing in this act shall be construed to authorize said city to take any pond or stream of wafer, or any water-rights, which said city is not now authorized by law to take.”
Under the provisions of this act, the city council passed the vote, and prepared a description and statement to be signed by the mayor, and filed in the registry of deeds, as appears in the bill of exceptions. Those acts vested another and different title in the city from what it had before. It had a certain fixed and vested estate in fee; whether in feé simple, or only a base fee, determinable thereafter, we need not inquire. The city has elected to take the rights which that act gives. Having done so, it must take it with the burdens. It does not appear whether any, or what, equities may exist between the petitioner and its grantor; but, as between the landowner and the respondent, it does appear that the respondent has not paid for the property which the petitioner alleges the respondent has taken. We do not decide the case upon any supposed equities; though it is satisfactory to know that the enforcement of the strict rules oí law does not operate inequitably. Exceptions sustained.
This act, approved March 30, 1861, and entitled “ An act in addition to an act for supplying the city of Worcester with water,” is as follows :
“ Section 1. In addition to the powers heretofore conferred, the city of Worcester is authorized to take and convey into and through said city the waters of East or Lynde Brook in Leicester, or of any other stream or pond
“ Section 2. If at any time the supply of water from the source first fixed upon and selected shall be insuEcient for the wants of said city, the said city may, by suitable works, conduct water from either of the other sources referred to in this act, or the act to which this is in addition, into the aqueduct first constructed, or into any reservoir therewith connected.
“ Section 3. Said city is further authorized to take and hold by purchase any lands or rights, and interests therein, which may be necessary for the convenient accomplishment of the purposes of this act.
“ Section 4. This act shall take effect on its passage.”
