178 Mass. 267 | Mass. | 1901
This is a petition to recover for the destruction of an established business, alleged to have been caused under the Metropolitan Water Supply Act, St. 1895, c. 488. The petition was filed in the Superior Court, and asked for a jury under § 13. It was dismissed on motion, for want of jurisdiction, and the case comes here on report. It is provided by § 14 that, if persons injured in this way cannot agree with the Metropolitan Water Board as to the amount of damages to be paid, “ such damages shall be determined and paid in the man
By § 12 the water board may agree with the party injured upon “ the damages sustained by any person ... in property by any taking of property or by any change of grade, . . . or by the construction, etc. ... or by the interference with the use of any water, or by any other act or thing done by said board under this act.” It will be noticed that the words “ by any other act or thing” refer back to and qualify “sustained by any person in property,” in the same way as do the words “ by any taking of property” and the succeeding clauses. The damage referred to throughout is damage sustained in property, and, it would seem, in property which can be taken by eminent domain.
The act goes on to provide by § 13 that the parties, “ if they cannot agree upon any damages, sustained as aforesaid, may, except in the cases in which payment is otherwise provided for in this act, within two year’s after the day of the taking of any. land, ... or of the use of any property, or of the making of any change of grade, ... or of the doing of any other act or tiling causing the damage,” file a petition for a jury “ to determine such damages ” in the Superior Court. Here again it will be seen that all the broad and general words of the section are confined to “ damages, sustained as aforesaid.” “ As aforesaid ” refers to § 13, and therefore the provisions of § 14 are confined to damages sustained in property. If then the statute stopped here the petitioners could not recover under the act. Whitman v. Boston & Maine Railroad, 3 Allen, 133, 141, 142. Edmands v. Boston, 108 Mass. 535. Williams v. Commonwealth, 168 Mass. 364. Lewis, Em. Dom. § 487.
The statute goes on in § 14 to provide for owners of land taken upon the Nashua River, or entered upon and used, or injured by the taking of the waters of the Nashua River, whether the land is within or without the Commonwealth, or of certain real estate in West Boylston, Boylston or Clinton, not taken but directly or indirectly decreased in value by the statute and the
“ In case any individual or firm owning ... an established business on land in the town of West Boylston, whether the same shall be taken or not under this act, . . . shall deem that such business is decreased in value by the carrying out of this act, . . . and unable to agree with said board as to the amount of damages to be paid for such injury, such damages shall be determined and paid in the manner hereinbefore provided.” It seems to us that this last clause is carrying on the thought of those that precede it. The immediately preceding clause had spoken of damage to business as a matter to be estimated by the commissioners, and this one goes on to provide for another case of damage to business. The earlier part of the section dealt with West Boylston, this continues to deal with it. It seems to ns pretty plain that as the section had provided for a commission before it is providing for a commission still.
It is provided in § 15 that “ any persons whose property is taken under the right of eminent domain, or entered upon or injured by the taking of said water, if dissatisfied with any determination of damages made by any commission, may . . . claim a trial by jury.” It is unnecessary to consider whether this provision extends to the petitioners’ case. It cannot do so except upon the ground that destruction of business is made by the act a taking of property within its meaning, whatever might be the case in the absence of § 14. If that argument should prevail, which we do not intimate to be likely, of course it would impair if not destroy the argument based on the word “ property ” in § 12. But in § 13 there is an exception “ in the cases in which payment is otherwise provided for in this act,” and if this does not refer to § 14 it has no satisfactory meaning at all. Taking the exception in § 13 and the juxtaposition of words in § 14, we are satisfied that “ hereinbefore” means in § 14, that the petition should have been filed in the Supreme Judicial Court, and that it properly was dismissed.
jDecree affirmed.