Howland v. Inhabitants of Greenfield

231 Mass. 147 | Mass. | 1918

Braley, J.

It is settled that where an easement in private land is taken for the maintenance of a sewer, only the person who at the date of taking owns the land or some interest therein has any claim to damages. And, independently of any question of waiver or estoppel, whatever right to damages in any form the owner of the land may have had, whether the entry of the defendant thereon was lawful or unlawful, was a chose in action which did not pass to her under the deed. Webster v. Lowell, 139 Mass. 172. Briggs v. Treasurer & Receiver General, 224 Mass. 46, 47.

But, while conceding that the first prayer of the bill for damages must fail, the plaintiff contends that under the second prayer she is entitled to a mandatory injunction, because, the original location having been void, the subsequent maintenance of the sewer constitutes a continuing trespass. It appears from the record that Franklin A. Pond, who was the owner, desired the town to construct a branch sewer through a portion of his land for the purpose of securing more effective drainage, and that the town voted to construct the sewer. The selectmen proceeded to carry out the vote, and, where land was taken for a sewer, they were required by the statutes then in force to give written notice to the landowner or leave the same at his last and usual place of abode, seven days at least before taking action, of their intention to locate and maintain the sewer as well as of the time and place of their meeting, and also to file in the town clerk’s office the layout with the boundaries and measurements seven days at least before the meeting when action was to be taken by the town on their report. Pub. Sts. c. 50, §§ 1, 2; c. 49, §§ 67, 71. The notice, however, although sufficient in form and delivered in hand, was not served until the day before the appointed time, and, while the town at a meeting duly warned and under an appropriate article in the warrant voted to build the sewer as laid out by the selectmen, it does not appear that the layout was ever filed. It is argued by the counsel for the plaintiff that the failure to comply with these requirements is fatal, and the construction of the sewer was unlawful. Poor v. Blake, 123 Mass. 543.

In our opinion these omissions are insufficient under the circumstances shown by the record to support the bill. While compliance with these provisions is necessary or the right of the public to take private property for a sewer cannot be exercised lawfully, and, if the landowner, being dissatisfied with the award of the selectmen, had asked for a jury to assess damages, he could not have maintained the petition (Jeffries v. Swampscott, 105 Mass. 535, Blaisdell v. Winthrop, 118 Mass. 138), the master reports that the landowner had actual notice, and that he subsequently appeared before the selectmen where he said that he “was very anxious for the sewer,” and “would 'claim no damages.” If this positive and deliberate action is' coupled with the further facts that his estate was benefited by the sewer, which was built at his request, and that he must have known what portion of the land had been taken, and that during the succeeding seventeen years of ownership by himself and his heirs the regularity of the proceedings has never been questioned, enough appears to show a waiver of the errors, or that he and his heirs were estopped from taking advantage of them. Fuller v. County Commissioners, 15 Pick. 81. Seymour v. Carter, 2 Met. 520. Pickford v. Mayor & Aldermen of Lynn, 98 Mass. 491. Noyes v. City Council of Springfield, 116 Mass. 87. Collins v. Mayor & Aldermen of Holyoke, 146 Mass. 298. Driscoll v. Taunton, 160 Mass. 486, 494.

If it be suggested that, in the absence of a layout duly filed the voters in town meeting do not “know exactly what the proposition is upon which they are to decide,” the landowner could not avail himself of this error for his own advantage on the ground that in building and maintaining the sewer the town, which had acted in good faith, committed a trespass entitling him to injunctive relief ánd to damages. Preston v. West’s Beach Corp. 195 Mass. 482,493. Watertown v. County' Commissioners, 176 Mass. 22, 32, 33, 34. The transaction from its inception having been in.substance an agreement on his part, that, if the town would construct and maintain a sewer, he would give the necessary location and make no claim for damages, the cases of Fitchburg Railroad v. Fitchburg, 121 Mass. 132, Grace v. Newton Board of Health, 135 Mass. 490, and Wood v. Milton, 197 Mass. 531, are plainly distinguishable.

The plaintiff not having acquired any greater estate than that possessed by her predecessor in title after the sewer had been built, took the premises subject to the public easement. Pickford v. Mayor & Aldermen of Lynn, 98 Mass. 491. Livingstone v. Taunton, 155 Mass. 363. Hendrie v. Boston, 179 Mass. 59.

It becomes unnecessary to consider the question of loches also relied on by the defendant, and the decree dismissing thé bill should be affirmed with costs.

So ordered.