Lynch v. Forbes

161 Mass. 302 | Mass. | 1894

Morton, J.

The principal questions involved in these two cases are the same, and by agreement of parties they were argued and are to be considered together.

The plaintiff contends, in both cases, that the taking was unlawful, and at the trial of the case in trespass he offered to show that, prior to the taking in question, the town had taken all the land that it needed, and that this was not suitable and was not necessary, useful, or proper for any of the purposes named in the acts under which it was taken. The •plaintiff concedes, what is well settled, that the question whether a necessity exists for the taking of private property for a public use is a legislative, and not a judicial one. He does not deny that the taking of land for water works and a., water supply for the general benefit of the inhabitants of a city or town is a taking for a public use; but he contends that where, as here, the authority is given “ to take . . . any lands or real estate necessary,” etc., the question of the necessity, so far as it relates to the land actually taken, is one of fact, to be settled by the court or jury. Such has not been deemed to be the law in this State, though it is said in a work of established authority that the constitutions of some of the States require it to be done. Talbot v. Hudson, 16 Gray, 417. Dorgan v. Boston, 12 Allen, 223. Eastern Railroad v. Boston & Maine Railroad, 111 Mass. 125. Lund v. New Bedford, 121 Mass. 286. Cooley, Const. Lim. (5th ed.) 538, note. There is no constitutional right on the part of the landowner in this State to have the question of the necessity or expediency of the taking in any particular instance submitted to a court or jury. Holt v. Somerville, 127 Mass. 408, 411. In the absence of any provision in the statutes submitting the matter to a court or jury, the decision of the question lies with the body or individuals to whom the State has delegated the authority to take. They have the same power as the State, acting through any regularly constituted authority, would have. Fall River Iron Works v. Old Colony & Fall River Railroad, 5 Allen, 221, 226. People v. Smith, 21 N. Y. 595, 597. Boom Co. v. Patterson, 98 U. S. 403, 406. Stockton & Darlington Railway v. Brown, 9 H. L. Cas. 246. Lewis v. Weston-Super-Mare Local Board, 40 Ch. D. 55. Cooley, Const. Lim. (5th ed.) 538. See Lewis, Eminent Domain, § 238, note, for collection of cases. Of course neither the State nor its delegates can take under the guise'of eminent domain the property of A. for the purpose of conveying it to B., or for a purpose clearly in excess of or at variance with the powers granted. No question of good faith, however, arises here, and the purpose for which the land was taken is within the scope of the acts authorizing it. The testimony that was offered was therefore rightly excluded, as was also that offered for the purpose of showing that the town was obtaining water from land taken in February, 1889, and that a part at least of the water thus taken did not come from the river by percolation. The validity of the taking now in question does not depend on the conduct of the town in regard to another and an earlier taking.

The plaintiff further contends that the formal requirements in relation to the taking were not complied with, and that the action of the selectmen and water board should have been ratified by the town. If it were necessary so to do, we well might rest our decision on the ground that the action of the town in defending these suits and in seeking to avail itself of what the selectmen and water board had done, coupled with its entry upon and taking possession of the land, constituted a ratification of their acts. Fisher v. Attleborough School District, 4 Cush. 494. Kincaid v. Brunswick School District, 11 Maine, 188. But we think all the formal requirements were complied with. The article in the warrant was “ to appropriate money for land for the extension of our water supply, and to authorize the treasurer to. borrow the same.” By it the question of the extension of the water supply was brought before the voters anew, and the consideration of the article necessarily involved the question whether there should be any extension, and whether any additional land should be taken. Thereupon the town voted that “ such land shall be purchased or taken for extension of the water supply of the town as the selectmen and water board for the time being shall decide to be for the best interests of the town.” It was not necessary that the town should designate the specific land to be taken, or that it should formally ratify what was done by the selectmen and water board. The St. 1872, c. 313, § 4, which was incorporated by reference into St. 1888, c. 131, expressly provided that the town might exercise the “ rights, powers, and-, authorities ” given to it by the act “ in such manner and by such commissions, officers, agents, and servants as said town shall from time to time choose, ordain, appoint, and direct.” Under this provision the town properly could delegate the power of taking to the selectmen and water board. Eastern Railroad v. Boston & Maine Railroad, 111 Mass. 125. Lund v. New Bedford, 121 Mass. 286. Lyon v. Jerome, 26 Wend. 485. St. Peter v. Denison, 58 N. Y. 416. The taking when completed by them became the act of the town. If there were any doubt before as to the power of the town to take from time to time, until the number of gallons specified and the amount of indebtedness authorized had been reached, the action of the Legislature in passing the act of 1888 without imposing any additional restrictions, and increasing the quantity of water that might be taken and the amount of indebtedness that might be incurred, would appear to have sanctioned the construction adopted by the town in regard to successive takings.

The plaintiff contends that by the demurrer the defendant admits that it had taken all the land that it was authorized to take before any of the last four takings, that none of the land included in the last four takings was necessary or proper for any of the purposes named in the acts, and that the plaintiff’s land was not necessary or fit for any use for which the defendant was authorized to take and purchase land. The effect of the demurrer is to raise, more forcibly perhaps, the same question that was presented by the offer of proof in the case in trespass, namely, whether this court or any court can revise the action of the town authorities in taking the plaintiff’s land. For reasons already given, we are of opinion that it cannot. The averment that the town had taken before the last four takings all the land that it was authorized to take is a conclusion of law, and not an allegation of fact, and has already been considered.

The result is, that in the first case the entry must be Judgment on the verdict, and in the second, Bill dismissed, with costs, and it is So ordered.