Choate v. Town of Sharon

• Decision Date: 23 May 1927
• Citation: 156 N.E. 727,259 Mass. 478
• Parties: CHOATE et al. v. TOWN OF SHARON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 478

156 N.E. 727

CHOATE et al.

v.TOWN OF SHARON.

Supreme Judicial Court of Massachusetts, Norfolk.

May 23, 1927.

Report from Superior Court, Norfolk County; Alonzo R. Weed, Judge.

Suit by Emma Choate and another against the Town of Sharon. On report, after finding and order sustaining validity of taking by town under power of eminent domain. Decree in accordance with finding and order.C. L. Carr, of Boston, for plaintiffs.

E. O. Proctor, of Boston, for defendant.

RUGG, C. J.

This is a suit in equity wherein the plaintiffs seek to restrain the defendant from entering upon land alleged to belong to them, and to recover damages. The case was reported by the trial judge upon the sole question whether his ruling was correct to the effect that the taking made by the defendant on May 15, 1924, was valid. A subsidiary ruling as to the exclusion of evidence also is reported.

[1] The facts found by the judge with respect to all matters must be accepted as true and final, because the evidence on which they are based is not reported.

At a town meeting of the defendant held in December, 1923, upon a sufficient article in the warrant, it was voted by more than a two-thirds majority that--

‘The town does hereby authorize and instruct the selectmen to purchase or take by eminent domain * * * the following described easement: * * * The right to locate, construct and forever maintain a drain for a portion of North Main street in said town over, through or under the following described parcel together with the drainage of any brook or water course from said North Main street as may naturally flow over said parcel.’

Then follows a description by bounds, courses and distances of specific land of the petitioners, together with an appropriation of money therefor. St. 1923, c. 266.

[2] The vote of the town was legal on its face and there is nothing in the findings of fact to impeach its validity. As bearing on the binding force of this vote of the town, the plaintiffs offered evidence tending to show that, before the town meeting, easements had been acquired by the town from owners of land adjoining the land of the plaintiffs to do the very things sought to be acquired by the easement over the plaintiffs' land, and that the warrant committee of the town, whose duty it was to study the various articles in the warrant and to make written report on each article by notice mailed to the voters before the meeting, made no mention of the easements already acquired, although knowing of them. It does not appear that there was any failure of duty on the part of the warrant committee, nor that the fact that other easements had been acquired was of essential importance with respect to the taking of the easement over land of the plaintiffs. Moreover, the whole matter was before the town at the meeting and all material facts could have been elicited by inquiry and debate, when the article was under consideration, although no mention was made of such easements. The deliberate vote of the town could not be set aside by reason of the facts set forth in the offer of proof. The case in this respect is distinguishable from Loring v. Westwood, 238 Mass. 9, 130 N. E. 85, and also from Wood v. Milton, 197 Mass. 531, 84 N. E. 332. There was no error in the exclusion of the evidence offered.

There had previously been filed a plea which the court had found not true because of an earlier insufficient taking, but upon that hearing the judge had found that there was no bad faith in respect to the town meeting and the other action by the town. That finding rightly should stand as final as to matters in the case as to which it was material. The judge was not required to go over that ground again, but could accept it for what it was worth in connection with the other facts found by him on evidence presented at the hearing on issues raised by the answer.

[3][4] The instrument of taking was in form and execution in conformity to the requirements of G. L. c. 79, §§ 1, 3, 6, and was filed at the place and within the time there specified. The circumstance that there had been an earlier and ineffectual attempt to make a taking, invalid because not effected in the manner provided by said chapter 79, did not exhaust the authority conferred by the vote of the town nor prevent the selectmen from making a valid taking pursuant to its direction within a reasonable time, regardless of their previous abortive effort. Since the earlier attempt to make a taking was void because of failure to comply with statutory requirements, it was as if nothing had been done and there was no bar to a valid taking. Williams v. Hartford & New Haven Railroad, 13 Conn. 397, 410, 411; Lehigh Valley Railroad Co. v. Dover & Rockaway Railroad, 43 N. J. Law, 528, 531; Trustees of Cincinnati Southern Railway v. Haas, 42 Ohio St. 239. Ashton Vale Iron Co., Limited, v. Mayor of Bristol, [C. A. 1901] 1 Ch. 591, 600. See Breckwood Real Estate Co. v. Springfield, 257 Mass. --, 154 N. E. 552. An award of damages of $54 was made in connection with the order of taking, and check therefor sent to the plaintiffs and by them returned. The order did not refer to the trees upon the land...