Evans v. City of Boston

190 Mass. 525 | Mass. | 1906

Loring, J.

The board of street commissioners of the city of Boston, acting under St. 1897, c. 426, located a new channel for the Neponset Avenue branch of Stony Brook on land of the petitioner, and took “ the right to maintain said new channel and other sewerage works in said land.”

It was held in Atkins v. Boston, 188 Mass. 77, that under such a taking the city had a right to use the channel for sewerage purposes which includes a right to use it for a house sewer.

The petitioner’s objection is that the notice of the hearing under which the taking in question was made was a notice “ that this board are of the opinion that public necessity and convenience require that the stream or watercourse, at West Roxbury, known as the Neponset Avenue branch of Stony Brook, be located anew from Sharon Street to the main channel of Stony Brook near Florence Street, that any parts of the original channel from which said watercourse may be diverted between said points be filled up, and that lands be taken for said purpose,” and that at the hearing held in pursuance of this notice those who attended in the plaintiff’s behalf “ learned . . . that the easement to be taken was to be solely for the relocation of the Neponset Avenue branch of Stony Brook.”

Were there anything in this objection the petitioner cannot set it up, since she has accepted the $283 awarded her as compensation for the taking made, and has released the respondent “ of and from all claims and demands whatever, for damages, costs, expenses, and compensation for, on account of, or in any way growing out of the relocation of the Neponset Avenue branch of Stony Brook through said parcels of land by an order of the *527board of street commissioners of said city of Boston passed June 27, 1899.” By that order the respondent took “ the right to maintain said new channel and other sewerage works in ” the lands taken.

But there is nothing in the objection. The notice which begins as stated by the petitioner ends with the statement that the board “intend to take the action so required under the provisions of Chapter 426 of the Acts of the Legislature of 1897.” The only purpose for which land can be taken under St. 1897, c. 426, is “ for sewerage works.”

Judgment reversed ; judgment for the respondent.