Barnes v. City of Springfield

• Decision Date: 25 September 1929
• Citation: 168 N.E. 78,268 Mass. 497
• Parties: BARNES et ux. v. CITY OF SPRINGFIELD (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 497

168 N.E. 78

BARNES et ux.

v.CITY OF SPRINGFIELD (two cases).

Supreme Judicial Court of Massachusetts, Hampden.

Sept. 25, 1929.

Exceptions from Superior Court, Hampden County; J. Walsh, Judge.

Petitions by Vincent E. Barnes and wife against the City of Springfield. Verdict for petitioners on first petition and for defendant on second petition, and both parties bring exceptions. Exceptions sustained in part and overruled in part, with directions to enter judgment in accordance with opinion.L. C. Henin, of Springfield, for petitioners.

D. H. Keedy, of Springfield, for defendant.

SANDERSON, J.

These are two petitions in which the petitioners, who are husband and wife, seek damages for the taking by the city of Springfield on or about January 21, 1907, for the purposes of a water supply under the authority of St. 1906, c. 317, of land in Russell, Westfield and Granville, and of waters of the Westfield Little river, and its tributaries, at and above the designated point of diversion. They also seek to recover other damages to their property and expenses. A bill of exceptions was filed by the petitioners and another by the respondent.

The first petition was entered January 20, 1909, and the second October 16, 1911. The docket entries show that on November 14, 1913, the cases were referred to an auditor. On March 17, 1925, the petitioners filed a motion for stay of proceedings before the auditor to enable the court to determine the validity of the taking, and its jurisdiction under the petitions. The petitioners then requested the court to hear evidence in support of their contention that the taking was invalid. On June 6, 1925, the petitioner Vincent E. Barnes filed a motion for discharge of the auditor alleging several reasons therefor. On June 19, 1925, both motions and the requests to hear evidence as to the invalidity of the taking were denied by a judge who ruled that it was not open to the petitioners to contend in these proceedings that the taking of the property set forth in the petitions was invalid and illegal. Exceptions saved to these orders and rulings were never perfected by the allowance of a bill of exceptions by the judge who made the rulings. On June 15, 1926, the auditor's report was filed. The judge who allowed the present bill of exceptions presided at the trial of the case with a jury and also passed upon certain motions filed in 1928 which are made a part of the bill of exceptions. Shortly before the case went to trial the petitioners filed several motions alleging that the taking was illegal and void, and that the court had no jurisdiction to assess damages under St. 1906, c. 317, § 7, and requesting that the hearings on the petitions be suspended until the Supreme Judicial Court had determined the validity of the taking and the jurisdiction of the superior court. These motions were denied April 2, 1928, and on the same date the cases went to trial. On April 12, 1928, the petitioners filed a motion in both cases that the report of the auditor be rejected and the auditor discharged, repeating their request for a continuance of the cases until this court should determine the validity of the taking and the jurisdiction of the superior court. This motion was denied. On April 23, 1928, they filed another motion asking, in substance, for a suspension of the trial and a report of the case to determine the validity of the taking and the jurisdiction of the court. This motion was denied.

On May 22, 1928, a verdict on the petition first brought was rendered assessing damages for Vincent E. Barnes in the sum of $13,680.99 and for Ellen L. Barnes in the sum of $22,801.64. In the second case, subject to the petitioners' exceptions, a verdict for the respondent was returned by direction of the court.

The ruling of a judge of the superior court made in 1925, to the effect that the petitioners are precluded from contending in these proceedings that the taking of the petitioners' property set forth in the petition was invalid and illegal, as well as his orders on the motions then decided, the exceptions to which were not perfected, cannot now be questioned. See Common Law Rule 51 of the Superior Court (1923); Brooks v. Shaw, 197 Mass. 376, 84 N. E. 110;Cohen v. Edinberg, 225 Mass. 177, 181, 114 N. E. 294;Cutter v. Cooper, 234 Mass. 307, 314, 125 N. E. 634. But if we assume that notwithstanding the rulings made in 1925 the petitioners could raise the same question at a subsequent stage of the case, no error of law appears in the ruling that in these proceedings they are precluded from contending that the taking was invalid or illegal.

The petitioners are seeking to have a jury assess their damages in accordance with the provisions of the act authorizing the taking. By the allegations in the petition they have admitted for the purposes of these proceedings the taking, validity, the regularity of the proceedings, and the constitutionality of the act. G. L. c. 231, § 87; Flagg v. Worcester, 8 Cush. 69, 71;Walcott v. Kimball, 13 Allen, 460;Snowling v. Plummer Granite Co., 108 Mass. 100;Pinkham v. Chelmsford, 109 Mass. 225;Murray v. County of Norfolk, 149 Mass. 328, 21 N. E. 757;Preston v. Newton, 213 Mass. 483, 100 N. E. 641;Sullivan v. Ashfield, 227 Mass. 24, 116 N. E. 565. The maintenance of the petition is based upon allegations of regularity and legality in the taking. In Moore v. Sanford, 151 Mass. 285, 24 N. E. 323,7 L. R. A. 151,Greenfield v. Burnham, 250 Mass. 203, 145 N. E. 306, and Radway v. Selectman of Dennis (Mass.) 165 N. E. 410, the validity of acts of public boards was tried by a bill in equity. In Bogigian v. Commissioner of Corporations, 248 Mass. 545, 143 N. E. 671, 672, the petitioner, who was seeking an abatement of a tax, contended that the statute was unconstitutional in requiring a nonresident to pay his tax before he could have an abatement. The court said that the petitioner was seeking a remedy given by the particular statute and ‘he asserts a right derived solely from the statute. He cannot, therefore, at the same time urge the unconstitutionality of the enactment under which he seeks his remedy. ‘If he takes advantage of the protection given by the statute for a review * * * he can enjoy that protection only upon the terms set out in the statute.’' The exceptions to the ruling excluding all evidence of the petitioners that the respondent had failed or neglected to comply with the provisions of the act under which the taking was made and to the ruling that they should not argue that the taking was void must be overruled.

There was no valid objection to the jurisdiction of the court. St. 1906, c. 317, § 7, provides that all damages under the act shall be ascertained and recovered in the manner providedby law when land is taken for the laying out of highways. By the statutes then in force, the superior court was expressly given jurisdiction to hear and determine petitions for the assessment of damages for land so taken. R. L. c. 48, § 109; Moore v. Sanford, 151 Mass. 285, 287, 24 N. E. 323,7 L. R. A. 151. The taking of land and water for a municipal water supply is a taking for a public purpose justifying the exercise of the right of eminent domain. Lumbard v. Stearns, 4 Cush. 60. The only ground upon which the petitioners have based their contention that the superior court was without jurisdiction to hear the petitions is that the alleged taking was illegal and invalid. For the reasons already stated the petitioners are bound in these proceedings by their allegations, and the court must assume for the purposes of this decision that the taking was valid. The judge was right in so ruling. His refusal to hear evidence in support of the motion, filed ten days after the trial began, relating to the auditor and his report discloses no reversible error.

The excepting party has the burden of showing error. In the case at bar there is no statement in the petitioners' bill of exceptions that it contains all the evidence relating to the various questions raised nor that it contains all parts of the charge relating to the subject-matter referred to in the parts to which exceptions were taken. Barnes v. Loomis, 199 Mass. 578, 85 N. E. 862;Evans v. County of Middlesex, 209 Mass. 474, 95 N. E. 897;Farnum v. Ramsey, 231 Mass. 286, 290, 120 N. E. 841;Morgan v. Morgan (Mass.) 166 N. E. 747. Arguments based upon documents, rulings, statements of fact or of evidence which do not appear to have been made a part of the bill of exceptions cannot be considered. All exceptions not argued must be treated as waived, notwithstanding the statement in the petitioners' brief that they do not waive any of those which have not been argued. Silverman v. Rothfarb, 247 Mass. 456, 142 N. E. 152.

The orders denying motions for continuance and for suspensions of the hearings must stand. They were filed many years after the first petition was entered and were addressed to the discretion of the court. Noble v. Mead-Morrison Manuf. Co., 237 Mass. 5, 16, 129 N. E. 669. See Noyes v. City Council of Springfield, 116 Mass. 87.

There is no requirement that the jurors called to try the case take an oath to support the Constitution of the United States or the oath referred to in the Sixth Amendment to the Constitution of this commonwealth.

Within the area of the taking there appears upon a plan introduced by the petitioners a lot designated ‘E. L. Barnes 49 acres.’ The material facts concerning this parcel so far as the bill of exceptions discloses are that a warranty deed purporting to convey it to the petitioner Ellen L. Barnes in 1901 was executed by Mary Spelman and her husband, Edward Spelman, who joined therein to convey his rights as tenant by the curtesy; that Vincent E. Barnes paid off a mortgage on the property and gave a check for the balance of the purchase price to Mary Spelman's son for her; that Barnes later discovered a ‘cloud’ on the title and spoke to Edward Spelman about it who...