173 Mass. 148 | Mass. | 1899
This is a bill brought to restrain the water commissioners of Stoughton from using land purchased by their predecessors in 1897 for a water supply, and to set aside the sale and the contract made for the construction of water works. The only question is whether the commissioners had authority to buy the land.
By St. 1886, c. 240, § 15, the commissioners have all the authority granted to the town by the act, and not otherwise specifically provided for, subject to such instructions as the town may impose by its vote; by § 10 the town is authorized to purchase of the company incorporated by the act for the purpose of supplying the town with water its franchise and all its rights, powers, and privileges, and by § 2 the corporation may take the waters from Knowles’s Brook and other waters, and also all lands, etc. necessary for the preservation and purity of all the before mentioned sources of water supply, etc. The town made the purchases and appointed water commissioners. It follows that the commissioners had power to buy the land, if within the scope of the act, unless they had been instructed otherwise by the town.
We think that there can be no doubt that the purchase of the land was within the scope of the act. The objection urged is that it was expected to get the waters of Knowles’s Brook through wells on this land, by interception or percolation. It is assumed that this was to be done without a taking of the brook, and some language of Endicott, J. is cited to the effect that there was no authority to take land for that purpose. Bailey v. Woburn, 126 Mass. 416, 418, 419. But we should have drawn a contrary conclusion from the one to which that case has led the plaintiff. For it was decided that there was a taking of the water by the proceedings of the town, and that the taking of the land was right and valid. See further Hollingsworth & Vose Co. v. Foxborough Water Supply District, 165 Mass. 186, 188. We must assume that the purchase was for the purpose contemplated by the act unless the contrary clearly appears. See Lynch v. Forbes, 161 Mass. 302, 308, 309. Whether it was expected or
The argument most pressed is that the town had instructed the commissioners not to proceed as they did. The facts do not require statement at any great length. The town bought out the water company in 1892. There followed discussions and consultations as to which was the best source of water supply, and a considerable sum of money was spent upon the Muddy Pond Brook mentioned in the act. In the spring of 1895 the water commissioners contemplated getting water from Knowles’s Brook, and a town meeting was called on May 21 under a warrant containing among others this article: “ To see what action the town will take in regard to purchasing certain land from Mr. A. E. Lincoln for a new water supply, and to determine the method of purchasing the same.” Under this a motion was made to “ authorize the water commissioners to purchase what land they think necessary for Mr. Lincoln,” which was laid on the table, and a motion under another article that they confer as to the amount of land needed, price, etc., was lost.
On July 2 there was another meeting under articles “to see if the town will authorize and instruct its board of water commissioners to purchase ” the land in question, and also to see if the town will authorize and instruct the board to make a contract for the building of some water works. Under the former article it was moved that the board “ be instructed,” not “ authorized and instructed,” as in the article, to buy the land. This was voted in the negative, as was also a motion to instruct the board to make a contract. These and the former votes are what are relied on by the plaintiff, and are all that really is material in the case, although there was put in some evidence showing secrecy, and calculated to give the impression that there was something discreditable in the attitude, if not in the conduct, of the water board; and also evidence on the one side that at the town meeting the question was discussed whether it was wise to take Knowles’s Brook or to retain the existing source,
We think it very likely that the board did fear that the town was against the scheme, or did at least expect a doubtful fight if the plan were known before it became an accomplished fact. But no prophetic insight or foresight on their part, however correct, diminished the power given them by the statute, unless and until the town instructed them by its vote. The fact that a vote was understood to spring from an adverse opinion, or that it did so, if it could be proved, would be immaterial. Unless it amounted to an instruction it could not cut down the power conferred by the act. The whole controversy is the very narrow one whether the vote not to instruct the commissioners to buy the land can be read as an instruction to them not to buy it. We are of opinion that to do so is too great a stretch of the import of the words used. They are sensible as they stand, free from doubt as to their meaning, and consistent with an understanding of the law on the part of the voters. As we have noticed already, while the article said “ authorize and instruct,” the motion conformed to the act and said only “ instruct.” If the voters knew the law, as to say the least it was their business to, they knew the difference between refusing to instruct the commissioners and instructing them the other way. We are of opinion that no admissible evidence in the case warrants a different construction from that which we adopt.
Two other objections, more feared by the defendants than