Burnett v. City of Boston

• Decision Date: 03 April 1899
• Citation: 53 N.E. 379,173 Mass. 173
• Parties: BURNETT et al. v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 173

53 N.E. 379

BURNETT et al. v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Worcester.

April 3, 1899

COUNSEL

F.P. Goulding and C.F. Choate, Jr., for petitioners.

J.M Hallowell, Asst. Atty. Gen., for defendant.

OPINION

KNOWLTON J.

St.1894 c. 108, gives the city of Boston new and enlarged rights to take water for the use of its inhabitants. It ratifies and confirms the agreement made by the Boston water board, acting for the city of Boston, and a committee of the town of Southboro, acting for the inhabitants of Southboro. This agreement was made in contemplation of the construction of extensive works for the accumulation and distribution of water, which would make it necessary to discontinue certain highways and townways, to alter very materially certain others, and to construct new ones. It also provided for a taking from the city's reservoir by the town of Southboro of not exceeding 200,000 gallons of water per day, to supply the inhabitants of the town. It authorized the city to do everything which the agreement provides it shall do, and especially to "take in fee, by purchase or otherwise any lands, rights in lands, waters or water rights which it deems necessary in carrying out said agreement, including any lands used for any part of the town, county, or other public ways which it may discontinue, as specified in said agreement." It differs from previous acts under which the city of Boston might take lands, water, and water rights in this vicinity, in prescribing that the taking shall take effect from the time of recording in the registry of deeds the proper writing showing the taking, instead of from an act of taking which might be at any time within 60 days before recording the paper, and in providing that, in case of disagreement, damages shall be assessed upon a petition for a jury filed in the superior court, instead of by three judicious freeholders first appointed to assess them, and in other particulars which it is unnecessary to state. It is plain that the provisions of this statute must be followed, in assessing damages for the taking of lands under it, and not the provisions of any previous statute.

The only other question in the case is whether it must be held notwithstanding the evidence offered by the petitioners, that their lands were taken under this statute. The principal argument against this proposition is that the agreement, and the statute...