Connor v. Metro. Dist. Water Supply Comm'n

• Decision Date: 25 May 1943
• Citation: 314 Mass. 33,49 N.E.2d 593
• Parties: CONNOR et al. v. METROPOLITAN DIST. WATER SUPPLY COMMISSION. MARVELL v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

314 Mass. 33

49 N.E.2d 593

CONNOR et al.

v.METROPOLITAN DIST. WATER SUPPLY COMMISSION.

MARVELL

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1943.

Case reserved from Supreme Judicial Court, Suffolk County.

Separate bills of complaint by Catherine M. Connor and another, and by Guy L. Marvell against the Metropolitan District Water Supply Commission to recover for the decrease in value of lands and businesses of the respective plaintiffs allegedly caused by the taking of nearby land for the Wachusett reservoir. The cases were reserved for the Supreme Judicial Court.

In each case bill dismissed.

Before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and DOLAN, JJ.

J. I. Robinson, of Springfield, and P. Nichols, of Boston, and J. R. Nolen, of Holyoke, for petitioner.

E. O. Proctor, Asst. Atty. Gen., for respondents.

LUMMUS, Justice.

By St.1926, c. 375, the respondent commission was established, and was empowered to divert into the Washusett reservoir the flood waters of the Ware River and its tributaries, and to take lands, water rights and other property in the watersheds of the Ware and Swift rivers. The foregoing statute was supplemented by St. 1927, c. 321, which extended the waters to be diverted into the reservoir, and the lands, water rights and other property that might be taken. It was provided (section 5) that a justice of this court might appoint a board of three referees for the determination of damages under the statute, subject to review by the court in matters of law. See Maher v. Commonwealth, 291 Mass. 343, 197 N.E. 78.

Both statutes provided (St.1926, c. 375, § 5; St.1927, c. 321, § 4) that all takings and all proceedings in relation to or growing out of the same shall conform to G.L. c. 79 except in certain particulars. By St. 1927, c. 321, § 5, provision was made as follows: ‘Any person or corporation owning at the time of the passage of this act any real estate which is not taken or purchased for the reservoir or the protection of the waters thereof under the provisions of this act situated within the territory comprised in the towns of Dana, Enfield, Greenwich and Prescott or within those portions of the towns of Belchertown, Hardwick, Pelham, Petersham, New Salem, Shutesbury and Ware not more than one mile distant from land required to be purchased or taken in fee under the second paragraph of section four of this act which real estate is decreased in value by the carrying out of the provisions of this act, or any person or corporation owning at the time to the passage of this act an established business on land within territory defined in this paragraph, which business is decreased in value, whether by loss of custom or otherwise, by the carrying out of the provisions of this act shall be entitled to recover damages in the manner hereinafter provided in this section. The commission, however, in its discretion, if it finds that any such person or corporation has an established business located near to but outside the areas defined in this paragraph which has been actually decreased in value by the carrying out of the provisions of this act and which person or corporation would have been entitled to damages under this section if located within the areas defined in this paragraph, may make such settlement by agreement with such person or corporation as it may deem just, but only upon the filing of a claim therefor within the time hereinafter provided in this section.’

The plaintiffs in the first case, Catherine M. Connor and Mary F. Vaughan, filed with the commission a sworn statement of their claims, under St.1927, c. 321, § 5. They owned a farm and a telephone business in New Salem, carried on upon land not taken or purchased. The value of the farm and telephone business was greatly decreased by the depopulation of the neighboring territory as a result of the submerging of it beneath the waters of the reservoir. Their claims were heard by the board of referees, which found that the established business of the plaintiffs had been injured to the amount of $4,200, but denied them damages because their land was not within one mile of the flowage line of the reservoir when filled.

The plaintiffs Connor and Vaughan then brought the present bill of complaint in this court, on the grounds that their property was appropriated without compensation, and that the statute discriminated against them by making an arbitrary distinction between their land and land situated nearer to the reservoir. A single justice reserved the case for the full court.

The material constitutional provision, apart from the less direct provisions of the Fourteenth Amendment to the Constitution of the United States, Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979, is art. 10 of the Declaration of Rights, which provides that ‘whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.’ In Callender v. Marsh, 1 Pick. 418, it was held that there was no right to damages for lowering the grade of a street in front of the plaintiff's house. It was said (page 430 of 1 Pick.) that the article just quoted ‘has ever been confined, in judicial application, to the case of property actually taken and appropriated by the government’, and (page 432 of 1 Pick.) that ‘the location of school houses upon public land may materially diminish the value of an adjoining or opposite dwelling house, on account of the crowd and noise which they usually occasion; but it cannot be imagined, that the public are obliged to consult the convenience of the individual so far as to abstain from erecting the school house, or to pay the owner of the dwelling house for its diminished value. These are cases of damnum sine injuria, and though proper for the favourable interposition of the community for whose benefit the individual suffers, they do not give a right to demand indemnity, by virtue of the above cited article in the Declaration of Rights.’ And it was suggested (page 434 of 1 Pick.) that ‘it might be proper for the legislature, by some general act, to provide that losses of the kind complained of in this suit should be compensated.’ See, also, Rev.Sts. (1836) c. 25, § 6; Burr v. Leicester, 121 Mass. 241.

In accordance with that case, it is settled that an owner whose land is not taken cannot obtain compensation for the incidental injury to that land, or to a business conducted upon it, by a public work, unless the statute so provides. Lincoln v. Commonwealth, 164 Mass. 368, 374, 41 N.E. 489;Earle v. Commonwealth, 180 Mass. 579, 63 N.E. 10,57 L.R.A. 292, 91 Am.St.Rep. 326;Sawyer v. Metropolitan Water Board, 178 Mass. 267, 59 N.E. 658;Sawyer v. Commonwealth, 182 Mass. 245, 65 N.E. 52,59 L.R.A. 726;Nashua River Paper Co. v. Commonwealth, 184 Mass. 279, 68 N.E. 209;Beaman v. Commonwealth, 304 Mass. 443, 24 N.E.2d 7;Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088, L.R.A.1915A, 887.

The statute in the present case (St.1927, c. 321, § 5) provides that the owner of land not taken or purchased situated in Dana, Enfield, Greenwich or Prescott, or in other towns named including New Salem within one mile of land required to be purchased or taken for submerging by the reservoir, which land is decreased in value by the proposed work or the owner of an established business on land within the same territory which is decreased in value thereby, may recover damages therefor as of right. The plaintiffs Connor and Vaughan contend that the statute is unconstitutional because it discriminates against them by making an arbitrary distinction between their land and land situated nearer to the reservoir. It appears from sections 13 and 14 that the corporate existence of Enfield, Greenwich and Prescott was to be terminated. By St.1938, c. 240, the corporate existence of Dana was terminated. It is a fair inference that substantially all of those towns was to be submerged. Unless damages were to be given for injury to land not taken, or to business conducted on land not taken, without territorial limits, the line had to be drawn somewhere. The territorial limits set by the statute do not, in our opinion, deny to the plaintiffs ‘the equal protection of the laws' within the Fourteenth Amendment to the Constitution of the United States, and the comparable provisions of arts. 1, 6, 7 and 10 of the Massachusetts Declaration of Rights. In Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 584, 55 S.Ct. 538, 540, 79 L.Ed. 1070, it was said that ‘A statutory discrimination will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it.’ See, also, the cases collected in a note to Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 42, 48 S.Ct. 423, 72 L.Ed. 770;Commonwealth v. Hubley, 172 Mass. 58, 51 N.E. 448,42 L.R.A. 403, 70 Am.St.Rep. 242;Whiting v. Commonwealth, 196 Mass. 468, 82 N.E. 670; Commissioner of Corporations & Taxation v. Co-operative League of America, 246 Mass. 235, 239, 140 N.E. 811;Ayer v. Commissioners on Height of Buildings in Boston, 242 Mass. 30, 36, 136 N.E. 338;Brest v. Commissioner of Insurance, 270 Mass. 7, 14, 15, 16, 169 N.E. 657;Howes Brothers Co. v. Unemployment Compensation Commission, 296 Mass. 275, 287, 288, 5 N.E.2d 720. In Burnett v. Commonwealth, 169 Mass. 417, 425, 48 N.E. 758, 761, it is said: ‘If the statute secures to the plaintiffs the payment of reasonable compensation for the taking of their property according to the requirements of our constitution, and if the provision is the same for all persons whose lands in the same locality are taken for the same use, the statute cannot be deemed to be in violation of either the constitution of Massachusetts or of that of the United States, because more favorable provisions for compensation have been made for persons...