Comiskey v. City of Lynn

• Citation: 226 Mass. 210,115 N.E. 312
• Parties: COMISKEY v. CITY OF LYNN.
• Decision Date: 05 March 1917
• Court: United States State Supreme Judicial Court of Massachusetts

226 Mass. 210

115 N.E. 312

COMISKEY

v.CITY OF LYNN.

Supreme Judicial Court of Massachusetts, Essex.

March 5, 1917.

Appeal from Superior Court, Essex County.

Bill in equity by James Comiskey to restrain the City of Lynn from entering upon plaintiff's land and erecting poles for the transmission of electricity, and for damages. From a decree for plaintiff, defendant appeals. Decree ordered affirmed.

A. G. Wadleigh, City Sol., of Lynn, for appellant.

Starr Parsons, H. Ashley Bowen, and C. D. C. Moore, all of Lynn, for appellee.

DE COURCY, J.

St. 1901, c. 508, authorized the city of Lynn, for the purpose of providing an additional water supply, to take by purchase or otherwise the water of Ipswich river and its tributaries. Under this statute the city made an admittedly valid taking of land for the purpose of establishing and maintaining a pipe line to be used in conveying the water to Lynn. Subsequently, in October, 1916, the city purported to take by right of eminent domain an easement in a strip of land twenty feet wide extending about fourteen hundred feet through the plaintiff's land, for the purpose of constructing and forever maintaining a power transmission line, with necessary poles, wire, and other apparatus, for conducting electric current from Lynn to a pumping station on the banks of the Ipswich river at North Reading. The pipe line and the proposed transmission line do not coincide; and the land taken for the pipe line nowhere touches the plaintiff's premises. The question for determination is whether this attempted taking of the plaintiff's land is authorized by the 1901 statute.

The language of the statute is, that the city of Lynn, ‘may take, by purchase or otherwise, all lands, rights of way and easements necessary for establishing filtration beds for holding and preserving all water taken by purchase or otherwise under authority of this act, and for conveying the same to any part of said city, and may erect on the land thus taken or held proper dams, buildings, fixtures and structures, and may make excavations, procure and operate machinery, and provide such other means and appliances as may be necessary for the establishment and maintenance of complete and effective waterworks.’

It is an established rule of interpretation that statutes authorizing the exercise of the city to take the plaintiff's land the consent of the owner are to be construed with reasonable strictness. The authority of the city to take the plaintiff's aldn by eminent domain exists only in case the Legislature has delegated that power in express terms or by necessary implication: It is not to be inferred from vague and doubtful general phrases. 1 Lewis, Eminent Domain (3d Ed.) §§ 371, 388. The instant statute expressly empowers the city to take lands, rights of way, and easements necessary for (1) establishing filtration beds, (2) holding and preserving water, and (3) conveying water to any part of said city. The first two may be put one side. The third, according to the ordinary and natural meaning of the words used, contemplates a taking for the purpose of laying a pipe line such as the city already has established. It is difficult to find in this language authority to take additional land for the sole purposes of an electric power line to the pumping station.

The statute next authorizes the city to erect dams, buildings, fixtures and structures: But this is only incidental to the above-mentioned express power, and must be exercised ‘on the land thus taken or held.’ The remaining language, ‘and may make excavations, procure and operate machinery, and provide such other means and appliances as may be necessary for the establishment and maintenance of complete and effective water works,’ is too vague and general to indicate a grant of a power to take land by eminent domain in view of the rule of...