Watson v. Inhabitants of Needham

161 Mass. 404 | Mass. | 1894

Knowlton, J.

The defendant town, acting through its water commissioners, undertook to furnish the plaintiff with water for use in a boiler to make steam to heat his greenhouse. It is objected that this is a use for which the town had no constitutional authority to take and furnish water, and that the contract was therefore void.

It is true that the right of eminent domain cannot be exercised to take property for a private use, and persons or corporations owning rights in streams or ponds cannot be deprived of their use of the water by an attempt to take it for the use of another merely for purposes of private gain; but it has long been settled that ponds and streams may constitutionally be taken in the exercise of the right of eminent domain for the purpose of supplying the inhabitants of cities and towns with pure water for domestic and other similar purposes. Opinion of the Justices, 150 Mass. 592. It may be a matter of some difficulty to determine precisely what uses are included within the public purposes for which water lawfully may be taken. In regard to uses strictly domestic there can be no doubt. We are of opinion that other uses are included, such as are fairly incidental to the ordinary modes of living in cities and large towns, and as involve the operation of motors requiring but a small quantity of water which may reasonably be supplied from an aqueduct of such capacity as would be needed to meet the ordinary requirements of the inhabitants for domestic and other similar purposes. We are of opinion that the use in the present case was one for which the town might legally furnish water.

The terms of the contract were not expressed in full, but were left in part to implication. In construing the contract, we must consider the situation of the parties and their relation to the subject with which they were dealing. The town was acting in the performance of a public duty in supplying water for public use, and incidentally was making contracts with individuals adapted to the circumstances of each particular case. It would not be expected to guarantee a supply of water against all contingencies, but only to guarantee proper effort to insure a constant supply. In the regulations which were made part of the contract the right to shut off the water in all cases when it becomes necessary to make extensions or repairs, and whenever the commissioners .deem it expedient, was expressly reserved; subject only to that reserved right, the town was bound to use reasonable care and diligence to have ready for delivery a sufficient supply of water for the plaintiff’s use, so long as the contract remained in force. Merrimack River Savings Bank v. Lowell, 152 Mass. 556.

There was evidence from which the court was warranted in finding a breach of this contract. The damage to the plaintiff did not result from the exercise of the reserved right to shut off the water. It was caused by a leak which remained undiscovered until after the standpipe had been emptied, and there was no longer any pressure in the service pipes. The testimony of the expert, and the other facts of the case, warranted the inference that due diligence was not used to discover such leaks quickly, and to shut off the flow of water to the place of the leak, and to start the pumping engines so as to prevent the standpipe being emptied.

It was not contended that the plaintiff was in fault, nor that the town should be relieved from liability on the ground that it was not accountable for the neglect of the water commissioners. Hand v. Brookline, 126 Mass. 324. Neff v. Wellesley, 148 Mass. 487.

The ruling in regard to the amount of damages recoverable was correct. Stock v. Boston, 149 Mass. 410.

Judgment on the finding.