Lunt v. City of Newburyport

224 Mass. 48 | Mass. | 1916

Loring, J.

No more accurate description of a right to flow lands could be made than the one made in the case at bar, namely: “ The right to flow to an elevation not exceeding twenty (20) feet •above mean low water in the Merrimac River such of the lands fdescribed] as will be flowed as a result of the maintenance of such a dam” upon the above described parcel of land.

The only doubt as to the validity of such a description comes from the question of its giving or rather not giving sufficient information to the owner of the amount of land covered by the description. It is plain that unless the owner waits until the water is turned on and reaches the elevation in question, he cannot know without the aid of a surveyor how much of his land is taken. It was said by this court in Hinkley v. Hastings, 2 Pick. 162, 164, that . “a street ought to be laid out with certainty, so that a surveyor may be able to make a plan of it.” And there is authority outside the Commonwealth for the proposition that a description is sufficiently certain if it can be laid out on the land by a surveyor. Smith v. Claussen Park Drainage & Levee District, 229 Ill. 155. Conaway v. Ascherman, 94 Ind. 187. But the sufficiency of the information given to the owner of the land and the validity of the description in all its aspects is concluded by the decision of this court in Burnett v. Commonwealth, 169 Mass. 417. In that case the description held to be valid was: “the right ... to fill said lands to grade two hundred and fifty-one (251) above the datum known as the Boston Water Board Datum, with material excavated from other lands of said Commonwealth.” The plaintiff has sought to escape from the effect of that decision by suggesting that the statement of the taking set forth in the opinion at pages 421, 422 is not a statement of the whole talcing, and that the part of the taking in question in that case was helped out by the rest of the taking. But it is evident from the report of the case that that is not so, and this is confirmed by a reference to the original papers. The takings which were held invalid in Wilson v. Lynn, 119 Mass. 174 and in Warren v. Spencer Water Co. 143 Mass. 9, bear no resemblance to the taking in question in the case at bar. Under these circumstances it is not necessary to point out in detail what those descriptions were. We have examined all other cases relied upon by the plaintiff and find nothing in them which requires special notice.

By the terms of the report the order sustaining the demurrer must be reversed, an order overruling the demurrer must be entered and the case is to stand for trial. It is

So ordered.