Cacavas v. City of Lynn

• Decision Date: 28 May 1929
• Citation: 166 N.E. 632,267 Mass. 140
• Parties: CACAVAS et al. v. CITY OF LYNN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 140

166 N.E. 632

CACAVAS et al.

v.CITY OF LYNN.

Supreme Judicial Court of Massachusetts, Essex.

May 28, 1929.

Exceptions from Superior Court, Essex County; Charles H. Donohue, Judge.

Action by Louis Cacavas and other against the City of Lynn. Verdict for defendant, and plaintiffs bring exceptions. Exceptions overruled.

Earl C. Jacobs, Edwin J. Coughlin, and G. Joseph Tauro, all of Lynn, for plaintiff.

Patrick F. Shanahan, City Sol., and John M. Cashman, Asst. City Sol., both of Lynn, for defendant.

CROSBY, J.

This is an action to recover for the conversion of certain personal property, owned by the plaintiffs and stored in a small building at the junction of Washington street and Traffic road, in Lynn, in the locality known as Nahant Beach Reservation. There was evidence that the plaintiffs leased the building from one Galis and others, under a written lease, from May 30 to September 15 during the years 1921 and 1922. In 1923 the building was rented by the owners to the plaintiffs, from May 30 to September 15, the tenancy being oral. The plaintiffs' goods were in the building during the term for which it was so rented, and when it expired they left the goods in the building keeping the key thereto. The building is described in the record as ‘an ordinary beach type refreshment booth.’

In July, 1922, the city council of Lynn, under the provisions of G. L. c. 82, as amended, adopted an order for the taking of certain land by eminent domain owned by Samuel Galis and others. The taking included a portion of the land upon which the building above described was located, part of the building being upon other land owned by Galis and others. The taking was for the purpose of widening the highway. On November 29, 1923, the employees of the street department of the city of Lynn by direction of the commission on ways and drainage of the city commenced the work of widening the street. The superintendent of streets instructed the employees to remove the personal property from the building and place it in a storage warehouse. This was done on November 29, 1923. There was evidence from which it could be found that in so removing the goods some of them were scattered about the premises, that others were damaged, and many of them were lost or carried away, and that but a small portion was placed in storage. After the goods were removed the building was demolished and the work of widening the street was completed.

It was agreed by the parties that the present city charter of Lynn is Sp. St. 1917, c. 340, and that it has been in effect since January 1, 1918. It also was agreed that under an ordinance adopted by the city council all work pertaining to streets in the city is performed by the commission on ways and drainage, whose employees are called ‘street department men,’ and the superintendent of streets ‘is the head of these men’ under the commission on ways and drainage; ‘that the work done by the employees of the street department at the point in question consisted in taking down a refreshment stand, taking out and removing back curbing and constructing street and sidewalk at this point, but the foregoing work was done by the authority of the commission on ways and drainage of the city of Lynn; * * * that the taking of the land in question was under the statute pertaining to eminent domain whose terms had been complied with and that entry...