Boston Water Power Co. v. City of Boston

• Decision Date: 04 September 1879
• Citation: 127 Mass. 374
• Parties: Boston Water Power Company v. City of Boston
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

127 Mass. 374

Boston Water Power Company v. City of Boston

Supreme Court of Massachusetts

September 4, 1879

Suffolk. Petition to the Superior Court for a jury to assess the damages sustained by the petitioner by the taking by the respondent of a parcel of land containing sixty-three and one half square feet for the purpose of widening a street. The land taken is shown on the plan printed in the margin ^[*] being the small triangular piece enclosed in dotted lines, and marked A. Samuel N. Brown and others also filed a petition alleging that they were owners of the lots of land marked 1 and 2 on the plan, and had, as appurtenant to their lands, rights of way over the land taken by the respondent, and prayed for leave to join in the petition of the Boston Water Power Company, and to have their damages assessed by the same jury. The case was submitted to the Superior Court on the following agreed facts:

On June 8, 1868, the Boston Water Power Company, being then the owner of the land in question, sold by public auction a large number of lots of land lying westerly of Dartmouth Street and northerly of St. James Avenue; and among them the lots marked 1 and 2, these lots being then unfilled flats. At the time of the sale, St. James Avenue was not filled and graded westerly of Dartmouth Street, but from Dartmouth Street easterly it was filled to the established grade; the other streets and avenues shown on the plan westerly from Dartmouth Street were not filled; Dartmouth Street, and the streets and avenues shown on the plan easterly from Dartmouth Street, were filled.

The deed of lot 1 described this lot by metes and bounds, and bounded it by St. James Avenue, Huntington Avenue, Dartmouth Street, a passageway and by lot 2. The deed of lot 2 described this lot by metes and bounds, and bounded it by St James Avenue, by lot 3, by a passageway, and by lot 1. The deeds of these and of the other lots referred to a certain plan recorded with Suffolk Deeds. This plan showed the length of all the lines of the lots west of Dartmouth Street and their contents. The plan printed in the margin is a copy of a portion of this plan. The large triangular piece enclosed in dotted lines, and including the land taken, did not so appear in the original or in the copies used at the auction sale but this space was not represented as enclosed at all. ** Brown and the other petitioners who seek to join hold their title by mesne conveyances from the purchasers at the auction sale, and have all their rights. The Boston Water Power Company had been the owner of all the land shown on the plan situated easterly from Dartmouth Street and southerly from the passageway, marked twenty-five feet wide; and had previously to June 8, 1868, sold all of its land easterly from Dartmouth Street, except the lot enclosed in dotted lines and the small triangular lot lying westerly of it, and except the streets shown on the plan, which it subsequently conveyed to the city of Boston. **

If the court is of opinion that the owners of lots 1 and 2 are not entitled to a right of way, judgment is to be entered for the Boston Water Power Company for $ 200, without costs, and the petition to join is to be dismissed, without costs; but if the court is of opinion that the owners of lots 1 and 2 are entitled to a right of way over the premises, judgment is to be entered for the Boston Water Power Company for $ 1, without costs, and for such owners for $ 1, without costs.

Brigham, C. J., ruled that the owners of lots 1 and 2 were entitled to a right of way over the land taken, and ordered judgment to be entered accordingly. The Boston Water Power Company appealed to this court.

H. D. Hyde & E. P. Howe, for the petitioner.

R. M. Thompson, for Brown and others.

The city of Boston submitted the case without argument.

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

OPINION

Ames, J.

The question presented in this case is whether Brown and others have any such interest in the land taken as to entitle them to a share in the damages to be recovered. These petitioners derive their title to lots 1 and 2...