D.N. Kelley & Son, Inc. v. Selectmen of Town of Fairhaven

• Decision Date: 01 July 1936
• Parties: D. N. KELLEY & SON, Inc., et al. v. SELECTMEN OF TOWN OF FAIRHAVEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 570

3 N.E.2d 241

D. N. KELLEY & SON, Inc., et al. v. SELECTMEN OF TOWN OF FAIRHAVEN.

Supreme Judicial Court of Massachusetts, Bristol.

July 1, 1936

Report from Supreme Judicial Court, Bristol County.

Mandamus proceeding by D. N. Kelley & Son, Incorporated, and others against the Selectmen of Town of Fairhaven, wherein the Casey Boat Building Company intervened. On report from the Supreme Judicial Court for the County of Bristol.

Petition dismissed.

M. R Brownell, of New Bedford, for petitioners.

T. F O'Brien, of New Bedford, for intervener.

C. Mitchell, of New Bedford, for respondents.

RUGG Chief Justice.

This is a petition for a writ of mandamus. The petitioners are two corporations and two residents of the town of Fairhaven, all being taxpayers in that town. The object of the petition is to require the respondents to cancel existing leases to Casey Boat Building Company of parts of wharf property owned by the town and to refrain from leasing another portion of the wharf and for further relief. The Casey Boat Building Company has been allowed to intervene.

The facts have been found by the single justice to be as stated in the report of an auditor to whom the case was referred. So far as material to the grounds of this decision those facts are in substance as follows: It was provided by St.1926, c. 43, § 1, that the town of Fairhaven (hereafter called the town) ‘ may purchase * * * or may take by eminent domain * * * the wharf property in said town known as Union wharf, and may maintain and operate the same as a wharf.’ Pursuant to this authority the town, in March, 1926, purchased the wharf property. Its total area is about three acres and twenty-three square rods. The town by its selectmen leased to the intervener (1) one part of the wharf property containing about one hundred fifty-four square rods, termed parcel ‘ A,’ and (2) an indentation or basin covered with water on the southerly side of the wharf near its westerly end containing about seventy-eight and sixty-three one-hundredths rods, termed parcel ‘ B,’ and it is proposed to lease to the intervener another part of the wharf lying between the other two leased parcels containing about sixty-one square rods and termed parcel ‘ C.’ The intervener is a private business corporation engaged in the business of repairing yachts and boats on the leased parcels, and for that purpose owns and maintains buildings thereon. Since the purchase of the wharf by the town, parcel ‘ A’ has been occupied by the intervener under successive leases, the latest one being for years from April 1, 1934, at a yearly rental of $500. Just previous to the purchase by the town, the wharf was not extensively used and it had fallen into disuse. When the intervener first took over parcel ‘ A’ it was in a very rough state. After the intervener took it over, it cleared off the stones and boulders from the short piece of beach, dredged out in front of the beach and filled in the land, including parcel ‘ C,’ to a level with the land fronting on Water Street. Since 1880 at least, this parcel had been low and wet. There was a pond in it, in which grew flags (cat-o-nine-tails) which were used in coopering. Before the beach was cleared by the intervener, boats could not be pulled thereon by reason of stones and boulders. This beach is necessary to it in launching yachts. The beach is not sandy but is rough and not suitable for bathing purposes. In March, 1935, a lease to the intervener was made of parcel ‘ B’ for the term of one year at a rental of $100. In it the town reserved the right of way for fishermen. Before the present petition was brought negotiations were had for leasing parcel ‘ C’ to the intervener for a term to expire in April, 1937, at a yearly rental of $300. Other parts of the wharf property are leased to several different tenants, including fishermen, for diverse uses. The buildings on these parcels are owned by the tenants. One is leased for a garage, another for a sail loft, and another to a fish company. Some of these buildings are not now occupied. The town uses a lot on the wharf for its sewer department.‘ Less than one-sixth of the wharf is used, by the public. Of late boating and yachting seem to be increasing. At the present time the unleased part of the wharf and the westerly end of the basin (which is the deepest part) are mostly used by fishermen, and only two are tieing up regularly. About one-third of the deepest part of the basin is reserved for fishermen. * * * There is room for ten to fifteen boats to tie up.’ It does not appear what buildings were on the wharf at the time of its purchase by the town in 1926, nor what buildings have been erected since. A considerable amount has been paid annually by the intervener in taxes on buildings and machinery and on boats in storage on the leased parcel ‘ A.’ During the terms of the present selectmen no demand or request has been made to them or brought to their attention for use or space, other than what is used, and no one has been refused or denied use of the wharf or space thereon. No demand or request has been made to the wharfinger since taking office early this year for more space, and no one has been denied the use of the wharf. Further specific findings of the auditor are these:

‘ 1. That the buildings erected on the wharf by lessees do not interfere with access to and egress from the end thereof or with the public use thereof.

‘ 2. That the principal use made of the docking facilities is by fishermen.

‘ 3. That at present only about one-sixth of the docking facilities outside of the part leased is being used by the public.

‘ 4. That the town has no occasion for the time being for the use for wharf purposes of any more of the wharf than it is now using.

‘ 5. That there is no occasion or present demand by fishermen or the public for any more of the wharf than is now being used by them.

‘ 6. That the short piece of beach is not desirable for swimming or bathing.

‘ 7. None of the lessees mentioned, except the Intervener, occupy under their leases any of the water frontage of the wharf, and

‘ 8. That the town has no occasion for the time being for the use of any more of the wharf property than it is now using.’

The case was reported by the single justice upon the pleadings and the report of the auditor for the determination of the full court. On a report in this form no exercise of discretion is involved. The question to be decided is whether upon the pleadings and the facts the writ of mandamus ought to issue as matter of law. School Committee of Lowell v. Mayor of Lowell, 265 Mass. 353, 354, 164 N.E. 91, and cases cited; Cochran v. Roemer, 287 Mass. 500, 502, 192 N.E. 58; Clancy v. Wallace, 288 Mass. 557, 559, 193 N.E. 546.

The petitioners may maintain this proceeding. It is brought for the vindication of a public right and its object is to procure the enforcement of a public duty, and no other remedy is open. Brooks v. Secretary of Commonwealth, 257 Mass. 91, 93, 153 N.E. 322, and cases there collected and reviewed. The principle of cases like Warner v. City of Taunton, 253 Mass. 116, 148 N.E. 377, to the effect that invasion of a common or public right affecting all persons alike and not causing special or peculiar damage to anyone does not afford a cause of action to an individual, does not govern the case at bar. Tuckerman v. Moynihan, 282 Mass. 562, 569, 185 N.E. 2.

The contention of the petitioners is that the town...