Connor v. Metropolitan Dist. Water Supply Com'n
| Decision Date | 25 May 1943 |
| Citation | 49 N.E.2d 593,314 Mass. 33 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | CATHERINE M. CONNOR & another v. METROPOLITAN DISTRICT WATER SUPPLY COMMISSION (and a companion case [1]). |
November 12, 1940.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.
Constitutional Law Equal protection of laws, Eminent domain. Damages, For property taken or damaged under statutory authority. Eminent Domain, Damages. Metropolitan District Water Supply Commission. Words, "Before the taking."
The provision of Section 5 of St. 1927, c. 321, which did not give an owner of land in New Salem, not taken nor purchased for the Wachusett reservoir nor within one mile of the flowage line thereof when filled, any right to recover damages due to decrease in the value of the land and of a business conducted thereon but did give such right to an owner of land or a business situated within such mile, did not unconstitutionally deny the first mentioned owner equal protection of the laws.
An owner of land which was taken in 1938 for reservoir purposes under St.
1927, c. 321, who had not complained of the delay by the commission for the period between the passage of the statute and the date of the taking, was not entitled to contend that he had suffered from unconstitutional discrimination even if he was not given compensation for alleged injury resulting from his being limited in beneficial use of his land and in carrying on his business thereon by reason of its impending submergence and from diminution of the fair market value of his land and of the business during that interval.
TWO BILLS IN EQUITY, filed in the Supreme Judicial Court for the county of Suffolk on September 25, 1939.
The prayers of the first bill as amended were for a determination of the damages suffered by the plaintiffs through the violation of their constitutional rights by alleged wrongful acts of the defendants, and that the defendants be permanently enjoined from further acting under St. 1927, c. 321, until the plaintiffs were paid damages they alleged to be due them.
The prayers of the second bill as amended were for a determination of the damages suffered by the plaintiff in his property and in his business by the failure of the defendants to take so much of his land as would be submerged by the dams constructed by them within a reasonable time after the location and heights of such dams had been officially determined by them, and that they be permanently enjoined from further acting under authority of the statute until the plaintiff had been paid the amount of damages claimed.
The cases were reserved by Dolan, J., for determination by the full court.
J. I. Robinson & P.
Nichols, (J. R. Nolen with them,) for the plaintiffs.
E. O. Proctor, Assistant Attorney General, for the defendants.
By St 1926, c. 375 the defendant commission was established, and was empowered to divert into the Wachusett 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.
Both statutes provided (St. 1926, c. 375, Section 5; St. 1927, c. 321, Section 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, Section 5, provision was made as follows:
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, Section 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 v. Chicago, 166 U.S. 226, 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) 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) that "the location of schoolhouses upon public land may materially diminish the value of an adjoining or opposite dwellinghouse, 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 schoolhouse, or to pay the owner of the dwellinghouse for its diminished value. These are cases of damnum sine injuria, and though proper for the favorable 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) 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, Section 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. Earle v. Commonwealth, 180 Mass. 579 . Sawyer v. Metropolitan Water Board, 178 Mass. 267. Sawyer v. Commonwealth, 182 Mass. 245 . Nashua River Paper Co. v. Commonwealth, 184 Mass. 279 . Beaman v. Commonwealth, 304 Mass. 443 . Richards v. Washington Terminal Co. 233 U.S. 546.
The statute in the present case (St. 1927, c. 321, Section 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...
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