Barnes v. Peck 

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG
• Citation: Barnes v. Peck , 283 Mass. 618, 187 N.E. 176 (Mass. 1933)
• Decision Date: 19 September 1933
• Parties: BARNES et al. v. PECK et al. (two cases). SAME v. CITY OF SPRINGFIELD (two cases). KNOX v. SAME.

283 Mass. 618

187 N.E. 176

BARNES et al.

v.PECK et al. (two cases).

SAME

v.CITY OF SPRINGFIELD (two cases).

KNOX

v.SAME.

Supreme Judicial Court of Massachusetts, Hampden.

Sept. 19, 1933.

Appeal and Exceptions from Superior Court, Hampden County; Lummus, Judge.

Suits in equity by Vincent E. Barnes and another against A. E. Peck and others, by Vincent E. Barnes and another against the City of Springfield, by Sadie B. Knox against the City of Springfield, by Vincent E. Barnes against the City of Springfield, and action at law by Vincent E. Barnes against Abner E. Peck and another. Judgment for defendants in action at law, and plaintiff brings exceptions. From interlocutory and final decrees dismissing the bills, plaintiffs in suits in equity appeal.

Exceptions overruled, and interlocutory and final decrees affirmed.L. C. Henin, of Springfield, for plaintiffs.

J. P. Kirby, of Springfield, for defendants.

RUGG, Chief Justice.

These four suits in equity and one action at law concern land and water used in connection with the water supply of the city of Springfield. The same person was appointed master and auditor who after taking a view of the various properties involved filed a comprehensive report in each case. The evidence is not reported. After the reports were filed the trial judge without objection heard evidence (which is not reported) and found certain facts in addition to those stated in the reports. Interlocutorydecrees were entered confirming the master's reports and final decrees dismissing the bills. In the action at law objections to the auditor's report were overruled and judgment was ordered in favor of the defendants. The suits in equity come before us on appeals by the plaintiffs and the action at law comes on exceptions by the plaintiff. The several plaintiffs are Vincent E. Barnes and Ellen L. Barnes, husband and wife, Vincent E. Barnes alone and Sadie B. Knox, the grantee of Vincent E. Barnes by deed dated in 1925. Reference will be made to Mr. and Mrs. Barnes as the plaintiffs except where a different designation is required. The defendants are the city of Springfield and persons claiming by, through or under it. The city will be meant whenever the word defendant is hereafter used unless otherwise stated.

Since the evidence is not reported the findings of fact made in the several cases must be accepted as true.

I. The issues in all the cases are very largely determined by the validity, nature and effect of a taking of land, water and water rights made by the city of Springfield in 1907. An underlying and main contention of the plaintiffs is that the taking of land and of water rights of the plaintiffs was illegal on several grounds and that the defendants were therefore trespassers from the beginning and as such are liable to the plaintiffs in damages. That taking purports to have been made pursuant to St. 1906, c. 317, by an instrument in writing executed by the board of water commissioners of Springfield on January 21, 1907, and on that date and also on April 16, 1907, recorded in the registry of deeds. A plan was also filed with the description in the taking; it was referred to in the taking and copy of it is annexed to the report. Speedily after its taking the city made entry upon lands taken and expended large sums of money in the development of additions to its system of water works and the water was used as supplementary to its other sources of supply.

(1) The title of St. 1906, c. 317, was ‘An Act to Authorize the City of Springfield to Increase its Water Supply.’ By section 7 provision was made for the assessments of damages sustained by any person by the taking of his property pursuant to the statute by letition filed within two years after such taking. The plaintiffs within that period of time, that is to say, on January 20, 1909, brought a petition for the assessment of their damages sustained by the taking made on January 21, 1907, in conformity to section 7. The petition was referred to an auditor. Hearings were held before him for twenty days in December, 1913, and January, 1914, and then were suspended until 1923. The report of the auditor was filed in §925. There was a trial by jury and verdicts for the plaintiffs for considerable sums were rendered in 1928. At that trial the plaintiffs introduced evidence as to the value of their property for all uses. The case came to this court and rescript ordering judgment in favor of the plaintiffs for specified sums was sent in 1929. Barnes v. City of Springfield, 268 Mass. 497, 168 N. E. 78. Final judgment in favor of the plaintiffs in accordance with the rescript was entered and the amount of that judgment has been tendered to the plaintiffs and has been refused by them.

The first of the present proceedings was brought in 1920, the second in 1925, and the three others were brought in 1926. Thus it appears that the plaintiffs filed the petition for the assessment of their damages, a petition which has finally gone to judgment in their favor, eleven years before the first of the present group of proceedings was instituted. That petition admitted for the purposes of that proceeding ‘the taking, its validity, the regularity of the proceedings, and the constitutionality of the act.’ Barnes v. City of Springfield, 268 Mass. 497, 503, 168 N. E. 78, 83. The commencement and prosecution to final judgment of that petition for assessment of damages in the circumstances disclosed preclude the plaintiffs from making in the present cases the contentions as to the invalidity of the taking there held to be not open to them. A landowner, who contests the constitutionality of a statute or the regularity of the procedure under which his land appears to have been taken by eminent domain, is not obliged to select at his peril the correct remedy and be barred from damages if he fails in his other contentions. It is usual in statutes authorizing the exercise of eminent domain so to limit the time for bringing petitions for damages that it might expire before the final decision of a proceeding seasonably begun designed to attack the the validity of the statute or the taking. In such case a party ought not to be held to a selection of remedy at his peril. Radway v. Selectmen of Dennis, 266 Mass. 329, 336, 165 N. E. 410. The cases at bar do not fall within that principle. These plaintiffs have waited an unconscionable period of time before undertaking to assail the statute or the procedure under which the defendant acted, and at the same time have been prosecuting their petition for damages based on the validity of the acts of the defendant. They have seen the expenditure of great sums of money by the defendant in reliance upon the validity of the taking without initiating any process to test the legality of that taking. They have slept for more than a decade upon the rights here asserted while maintaining a petition in substance and effect stating to the defendant that its acts were legal. It is trifling with the courts to involve the public treasury in expensive trials and parties in great delays affecting important public undertakings in this way. The final judgment on their petition for assessment of damages must be held to be a waiver of rights to maintain the present proceedings and an election to depend upon the petition for damages. See Moore v. Sanford, 151 Mass. 285, 287, 24 N. E. 323,7 L. R. A. 151. This is not a question of laches. It is a case where the underlying principle of Broitman v. Silver, 278 Mass. 510, 180 N. E. 311, is applicable. This is not an instance where parties have surrendered their right to damages on the theory that the taking was invalid and have relied alone upon strict legal rights. They have experimented by ascertaining the amount of damages, to which they are entitled on the theory of a legal taking, finally established in Barnes v. City of Springfield, 268 Mass. 497, 168 N. E. 78, and they now seek to have all that go for naught and invoke the aid of the court to declare invalid the costly constructions made by the defendant for the public welfare. That course is contrary to law. In the circumstances disclosed the plaintiffs are bound to abide by the result of their petition for the assessment of damages. This is the sound principle precisely supported by authority. Pinkham v. Inhabitants of Chelmsford, 109 Mass. 225, 229;Attorney General v. City of Methuen, 236 Mass. 564, 582,129 N. E. 662;Byfield by City of Newton, 247 Mass. 46, 141 N. E. 658.

(2) Considering on their merits the objections now urged by the plaintiffs, there is nothing to show that there was invalidity in the taking. It is too plain for discussion that St. 1906, c. 317, under which the taking by eminent domain was made violated no rights of the plaintiffs secured by the Constitution of this Commonwealth or of the United States. The use for which the taking was authorized was public. All rights of landowners as to just compensation, notice, limitation for time of bringing petition for damages and otherwise were guarded. Frost Coal Co. v. Boston, 259 Mass. 354, 156 N. E. 676. The statute was duly accepted by the city and the board of water commissioners were authorized to make the taking. There was nothing to show want of authority on the part of the officers to act in behalf of the city. They were at least de facto officers and their title is not open to attack in these proceedings. Prince v. Boston, 148 Mass. 285, 19 N. E. 218;Sevigny v. Lizotte, 260 Mass. 296, 157 N. E. 594. The finding of the master is categorical to the effect that the defendant caused to be recorded as to the lands here involved a description as certain as is required in a common conveyance of land and filed therewith a map drawn to scale of the lands taken and described, all in conformity to chapter 317. This finding includes the point four hundred feet above mean sea level. Whether a description of land and water and water rights and a map delineating the same...