52 Mass. 321 | Mass. | 1846
This case comes before us on exceptions taken to the orders, directions, and rulings of the court of common pieas; and the question is, whether the same were authorized by the Rev. Sts. c. 115, on the construction of which the case depends. That court was of opinion, that the petitioners, who were appellants from the adjudication and order of the commissioners for the improvement of meadows, &c., appointed in pursuance of said chapter, were entitled to damages,
The only provisions which authorize the commissioners to assess damages in favor of any one, who is not a party to the proceedings, are. contained in the 14th and 15 sections of c. 115 of the revised statutes, which enact, <§> 14, that “ when the commissioners shall find it necessary or expedient to reduce or raise the waters, for the purpose of obtaining a view of the premises, or for the more convenient or expeditious removal of obstructions therein, they may open the flood-gates of any mill, or make other needful passages hrough or around the dam thereof, or erect a temporary dam, on the land of any person, who is not a party to the proceedings, and may maintain such dam, or such passages for the water, as long as shall be necessary for the purposes aforeJ said.” And by § 15, the commissioners are required to estimate such damages as may be occasioned thereby, unless agreed on between them and the parties concerned therein, and to pay the same out of the moneys to be assessed and collected by them, as provided by other sections of the chapter.
It appears that the appellants were not made parties to the proceedings, and they claim no damages by virtue of the said sections of chapter 115. That they should have been made parties appears, we think, from the 1st and 2d sections of the statute. By *§> 1, it is provided that when any meadow or low land “shall be held by several proprietors, and it shall be necessary or useful to drain or flow the same, or to remove obstructions in rivers or streams leading therefrom, such improvements may be effected, under the direction of commissioners, in the manner provided in this chapter.” By <§> 2, the application for such proceedings is directed to be made by the proprietors of such meadow or low land, “ or the greater part of them in interest; ” and the court, to whom the application is made, is required to give notice thereof
Now it is alleged by the appellants, in their reasons of appeal from the proceedings of the commissioners, and their application to the court for the redress of their grievances thereby, that the lands belonging to them were below and adjacent to the lands through which the commissioners had opened a ditch or drain ; and this allegation is not traversed or denied by the respondents. The lands of both parties, therefore, must be considered as forming one meadow, within the true meaning of the statute; and all the proprietors should have been made parties, and the application should have been made by a majority in interest of all the proprietors. If the appellants, who were proprietors of the lower part of the meadow, had applied to the court to flow the upper part of the meadow belonging to the respondents, it could not be doubted, we think, that the latter should have been made parties. And the same reasons require that the appellants should have been made parties in the present case. In all such cases, the remedy provided by the statute for any damage sustained by any proprietor is full, adequate and convenient.
Whether these proceedings are void or voidable by the appellants, and, if they may be avoided, whether the appellants have a remedy, by a suit at law, for any damages sustained by them, are questions which we are not called upon to decide; for however that may be, we are of opinion that they are not entitled to a remedy under the statute.
The result is, that the order and decision of the court of common pleas must be reversed, and that the application of the appellants for the assessments is to be dismissed.
