B. & B. Amusement Enterprises v. City of Boston

• Decision Date: 25 May 1937
• Citation: 8 N.E.2d 788,297 Mass. 307
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: B & B AMUSEMENT ENTERPRISES, INC. v. CITY OF BOSTON.

297 Mass. 307

8 N.E.2d 788

B & B AMUSEMENT ENTERPRISES, INC. v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1937

March 1, 1937.

Present: RUGG, C.

J., PIERCE, FIELD LUMMUS, & QUA, JJ.

Municipal Corporations, Waterworks. Payment. Volunteer.

The owner of a building was entitled to a supply of water from municipal waterworks regardless of unpaid charges made to and due from a former tenant for which the municipality had no lien.

Money paid by the owner of a building to a municipality under protest in compliance with a demand, unlawfully made as a condition of furnishing him a supply of water, that he pay charges due from a former tenant, was not paid voluntarily and could be recovered.

CONTRACT. Writ in the Municipal Court of the City of Boston dated May 4, 1935.

The action was heard by Zottoli, J., who found for the plaintiff in the sum of $289.78. A report to the Appellate Division was ordered dismissed. The defendant appealed.

I. H. Fox Assistant Corporation Counsel, for the defendant.

E. M. Dangel, (S.

Andelman with him,) for the plaintiff.

QUA, J. The plaintiff seeks to recover back a sum of money heretofore paid by it to the defendant for water which the defendant, in the years 1930 and 1931, furnished and charged to a lessee of the plaintiff then occupying the plaintiff's premises. The lease required the lessee to pay for water. Later the premises became vacant. In 1935, the plaintiff itself requested the defendant to supply water to be consumed thereon. The defendant refused to do so unless the plaintiff should pay for the water formerly charged to the lessee. At that time any lien which the defendant may have had upon the land under G. L. (Ter. Ed.) c. 40, Sections 42A-42C, had been lost. The plaintiff, "wishing to have the water turned on and supplied to the said premises," paid the sum in question under protest, contending that it was not legally bound to pay the same.

Plainly the city had no right to require the plaintiff, as a condition precedent to receiving water, to pay bills charged to the tenant for water previously furnished to the tenant. Turner v. Revere Water Co. 171 Mass. 329. Cox v Malden & Melrose Gas Light Co. 199 Mass. 324 . Brand v. Water Commissioners of Billerica, 242 Mass. 223 228. See G. L. (Ter. Ed.) c. 270, Section 13. That the city did impose this condition appears by fair construction of the case stated without resorting to inference. See, however, G. L. (Ter. Ed.) c. 231, Section 126.

The defendant contends that the plaintiff cannot recover because it made the payment voluntarily. But the plaintiff as a landowner had a right to a supply of water, which it was the duty of the city as the operator of a public utility (Loring v Commissioner of Public Works of Boston, 264 Mass. 460, 464) to furnish on the same terms on which it furnished water to others. No other comparable service was available to the plaintiff. The condition which the city sought to impose was unlawful and oppressive. Yet as a practical matter the plaintiff was obliged to submit to it for the time being or go without water. We think the plaintiff was justified in taking the course which it did take as the simplest way out of the difficulty, and that it was not bound first to resort to litigation in order to avoid the imputation of having paid...