Danforth v. Groton Water Co.

• Decision Date: 17 May 1900
• Citation: 57 N.E. 351,176 Mass. 118
• Parties: DANFORTH v. GROTON WATER CO. VALE MILLS v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 118

57 N.E. 351

DANFORTH

v.GROTON WATER CO.

VALE MILLS

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

May 17, 1900.

Report from superior court, Middlesex county; Henry K. Braley, Judge.

Petitions by George D. Danforth and the Vale Mills for assessment of damages against the Groton Water Company by juries for taking water rights. To rulings dismissing the petitions, the petitioners excepted, and the cases are reported for determination at the request of both parties. Petitions dismissed.C. K. Cobb, for plaintiff Vale Mills.

J. D. Colt, for plaintiff G. D. Danforth.

W. F. Wharton, for defendant.

KNOWLTON, J.

St. 1897, c. 338, incorporating the Groton Water Company, contains, in section 4, the following provision: ‘Any person sustaining damages as aforesaid under this act, who fails to agree with the said corporation as to the amount of the damages sustained, may have the damages assessed and determined in the manner provided by law when land is taken for the laying out of highways, on application at any time within one year from the taking of such land or other property, or the doing of other injury under the authority of this act; but no such application shall be made after the expiration of one year. No application for the assessment of damages for the taking of any water, water right or water ways, or for any injury thereto, shall be made until the water is actually withdrawn or diverted by the said corporation under the authority of this act.’ The only question in these cases is whether the petitioners are authorized to apply directly to the superior court for a jury, without first making application to the county commissioners for an assessment of damages.

When land is taken for the laying out of a highway, an estimation of damages by a jury can only be had upon an application in the nature of an appeal from the decision of the county commissioners by a party aggrieved by their action in such estimation. Pub. St. c. 49, §§ 14, 32, 105. The petitioners say that the award by the county commissioners when a highway is laid out is made as part of the original proceeding, and not upon a formal application or petition of the landowner, and therefore they contend that the provision for an application in this statute cannot mean an application to the commissioners to make an award. This question has been carefully considered by this court, and settled adversely to the contention of the petitioners, in a series of case...