City of Newton v. Perry

• Decision Date: 06 March 1895
• Citation: 39 N.E. 1032,163 Mass. 319
• Parties: CITY OF NEWTON v. PERRY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 319

39 N.E. 1032

CITY OF NEWTON v. PERRY et al.

Supreme Judicial Court of Massachusetts, Norfolk.

March 6, 1895

COUNSEL

Eugene P. Carver and Edward E. Blodgett, for appellants.

Winfield S. Slocum, City Sol., for appellee.

OPINION

HOLMES J.

There are no sacramental words which must be used in a statutory power to take and hold lands in order to give a right to take the lands in fee. Any language in the statute which makes its meaning clear is sufficient, and a very little more than "take and hold" has been held enough. Dingley v. Boston, 100 Mass. 544; Page v. O'Toole, 144 Mass. 303, 10 N.E. 851. In Titus v. City of Boston, 161 Mass. 209, 36 N.E. 793, "take in fee" was thought to mean take the lands, and not merely an easement. We assume, in deference to the decisions, that the power to take and hold given by the statutes in this case only authorized the taking of an easement. Harback v Boston, 10 Cush. 295; Attorney General v. Jamaica Pond Aqueduct, 133 Mass. 361, 365; Conklin v Railroad Co., 154 Mass. 155, 28 N.E. 143. But it is plain from these, as from all the cases, that the purpose of the taking must fix the extent of the right. The right whether it be called "easement" or by any other name, is statutory, and must be construed to be large enough to accomplish all that it is taken to do.

One of the purposes for which the defendants' land was taken was for the protection of the plaintiff's water supply. St.1889, c. 302, § 3. It is too late for the defendants to deny that it was necessary to take the land for that purpose. It has been taken, and they have been paid for it. Whatever rights over the land could be needed for the protection of the water under any circumstances, the plaintiff has got; and whatever rights it has it may exercise at once. It would be an unjust refinement to say that the right is only to do such things from time to time as a court or jury may think necessary then. The whole right is paid for without regard to the probability of its being exercised. Howe v Inhabitants of Weymouth, 148 Mass. 605, 20 N.E. 316; Proprietors of Mills on Monatiquot River v. Inhabitants of Randolph, 157 Mass. 345, 353, 32 N.E. 153. We are of opinion that when land is taken for the protection of a water supply, exclusive possession of the surface is or may be necessary in order to get the protection needed, and therefore that the right to such possession is one of the rights...