Phillips v. County Comm'rs of Middlesex

• Decision Date: 05 March 1877
• Citation: 122 Mass. 258
• Parties: George W. Phillips, administrator, v. County Commissioners of Middlesex
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

122 Mass. 258

George W. Phillips, administrator, v. County Commissioners of Middlesex

Supreme Court of Massachusetts

March 5, 1877

Middlesex. Petition by the administrator of David Dyer for a writ of certiorari. By order of court, notice to show cause why the petition should not be granted, was given to the Boston and Maine Railroad, and to the towns of Malden and Melrose. The case was heard before Morton, J., who reserved it for the consideration of the full court. The facts appear in the opinion.

Writ of certiorari to issue.

G. W Phillips, pro se.

E. R Hoar, (B. F. Hayes with him,) for the town of Malden.

C. P Judd, for the Boston and Maine Railroad.

F. S. Hesseltine, for the town of Melrose.

C. Robinson, Jr., for the county commissioners.

Colt, J. Morton & Endicott, JJ., absent.

OPINION

Colt, J.

Under the St. of 1869, c. 378, entitled, "An act relating to drainage in the towns of Malden and Melrose," the county commissioners of Middlesex, after an examination of the premises, and a hearing on the question of removing obstructions, declared that they deemed the removal of the dam at Dyer's privilege "necessary for the purposes of proper drainage and the public health," and thereupon issued an order, on March 28, 1871, that the dam be removed in such manner that the water standing above it may pass away. It was accordingly at once removed by agents appointed by the commissioners for that purpose.

The dam was owned by the petitioner's intestate, David Dyer. No damages were awarded to him for this act; and on February 20, 1872, he petitioned the commissioners to come to some agreement or settlement in relation thereto, upon which they took no action. On March 26, 1872, and within a year from the date of the order for the removal, he applied by petition for a jury to assess his damages, but no action was ever had upon this application. In January, 1873, Dyer died; and in March, 1875, his administrator asked for leave to come in for the purpose of reviving and prosecuting the original petition; but, after a full hearing in March, 1876, this application of the administrator was dismissed. The administrator petitions for a writ of certiorari, and the question is whether he is now entitled to have his damages assessed by a jury.

The statute in question directs the county commissioners to take and lay out all such lands and water rights as they may deem necessary for the purpose of drainage and to secure the public health; and further authorizes them to improve the channels of certain streams, and to remove all dams and obstructions therefrom. In the matter of damages sustained by any person, it provides that they shall be assessed and collected in the same manner as in the case of the laying out of highways.

This general reference to the provisions of the highway acts cannot be interpreted as requiring that those provisions shall be strictly and literally applied to all proceedings under this act. The phrase "in the same manner" means, by similar proceedings, so far as such proceedings are applicable to the subject matter. Much that is necessary in order to adapt the provisions of the General Statutes in substance and effect to the new conditions of this special act, must be left to necessary implication. Fitchburg Railroad v. Boston & Maine Railroad, 3 Cush. 58. Worcester v. County Commissioners, 100 Mass. 103, 106. Call v. County Commissioners, 2 Gray 232, 235.

1. It is objected that the proceedings are irregular and void because Mr. Waitt, who was a resident of Malden, was interested in the subject matter, and acted as a member of the board of county commissioners when they were commenced.

The statutes relating to ways declare that "if either of the county commissioners is interested in a question before the board, or if any part of a road upon which they are to act lies within the city or town in which either of them resides," then a special commissioner shall be called in. Gen. Sts. c. 17, § 12.

Before this statute, it had been held in Wilbraham v County Commissioners, 11 Pick. 322, that the fact, that a commissioner was a taxable inhabitant of a town through which a road was to pass, did not disqualify him. By the special act under consideration, the commissioners are made a special tribunal to discharge the...