200 Mass. 425 | Mass. | 1909
The St. 1896, c. 530, § 1, is as follows: • “ The city of Boston may alter the course of and make a new channel, covered or uncovered, for Stony Brook in the city of Boston, from a point at or near the Tremont Street crossing of the Boston and Providence Railroad to a point at or near Boylston station on said railroad.” Section 2 gives a right to the street commissioners to take “for the purpose aforesaid, any lands in said city which they may deem necessary therefor,” and to “ take any rights or easements in said brook or in any lands which they may deem necessary,” etc. If the taking was otherwise than by purchase, they were required to file in the registry of deeds a description of the lands or rights or easements taken.
Acting under this statute, on April 22,1897, the street commissioners filed in the registry of deeds a statement of a taking “for the purposes specified in section one of this act.” This included the fee of one parcel of land, with easements of the right to use several other parcels, all definitely described, with a reference to two plans on file in the office of the superintendent of streets, one of which is entitled “ Plan of Taking for Relocation of Stony Brook Channel and Gatehouse, Columbus Avenue, Roxbury,” and the other, “ Plan of Taking for the Relocation of Stony Brook, Junction Centre and Amory Streets.” This taking was duly filed in the registry of deeds, and the city began the making of a new channel for Stony Brook through these lands immediately, and completed the work and turned the brook into the new channel on October 1,1897. In the parcels in which easements-only were taken, there was a reservation to the owners of the “ right to erect and maintain buildings over and upon said brook, and to use the waters of said brook, so far as said acts may not obstruct the free flow of said waters, it being the intention of this taking to acquire merely the right to improve the channel of said brook.”
These parcels included land on both sides of the brook, beginning at a point a considerable distance up the stream from the
The question here is whether this taking by the city gave it a right to use the land for a new channel of the brook, and gave the plaintiff a right to recover damages, under the statute, for this alteration of the course of the brook. We are of opinion that it did. It deprived the plaintiff of the water that previously flowed through his land. The taking of the land for this purpose, coupled with the authority of the city under the statute to use it for this purpose, made it certain from the time of the taking that this alteration of the brook would follow, and would divert the water from the plaintiff’s estate. Accordingly he could recover damages under the statute for the taking for this authorized purpose.
Under most of these statutes it is not necessary, nor is it the practice, to mention the rights of riparian owners below, nor to register a taking of their individual rights, beyond a general statement of the taking of that which, under the statute, authorizes a diversion of the water. See Northborough v. County Commissioners, 138 Mass. 263; Ætna Mills v. Waltham, 126 Mass. 422; Smith v. Concord, 143 Mass. 253 ; Howe v. Weymouth, 148 Mass. 605. For cases in which the channel of a brook has been altered or improved, see Washburn & Moen Manuf. Co. v. Worcester, 153 Mass. 494, and cases there cited; Morse v. Worcester, 139 Mass. 389, 394; Washburn & Moen Manuf. Co. v. Worcester, 116 Mass. 458; Boston Belting Co. v. Boston, 149 Mass. 44; Boston Belting Co. v. Boston, 152 Mass. 307.
We are of opinion, that the defendant was not called upon to
Exceptions sustained.