Driscoll v. City of Taunton

• Decision Date: 27 February 1894
• Citation: 36 N.E. 495,160 Mass. 486
• Parties: DRISCOLL v. CITY OF TAUNTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 486

36 N.E. 495

DRISCOLL v. CITY OF TAUNTON.

Supreme Judicial Court of Massachusetts, Bristol.

February 27, 1894

COUNSEL Bennett & Hall, for petitioner.

Charles A. Reed, for defendant.

OPINION

LATHROP J.

1. The first question in this case arises on the motion to dismiss the petition on the ground that the superior court had no jurisdiction of the matter. This question is also raised by a request for a ruling. It was the duty of the board of health if, in its opinion, any damages were sustained by the petitioner, to estimate such damages. Pub.St. c. 80, § 30. Its return, therefore, under section 33, to the city clerk which mentioned no damages, must be taken as a determination on its part that no damages were sustained. Monagle v. Commissioners, 8 Cush. 360. See, also, North Reading v. Middlesex Com'rs, 7 Gray, 109, 112; Hildreth v. Lowell, 11 Gray, 345, 352; Hamlin v. New Bedford, 143 Mass. 192, 11 N.E. 115. The present petition is therefore in the nature of an appeal from an award of the board of health, and the question is whether the petition can be brought in the superior court. Section 35, c. 80, of the Public Statutes, is as follows: "Any person aggrieved by the decision of the board, health officer, or commissioners, in their estimate and award of damages, may make complaint to the county commissioners for the county at any time within one year after the return to the city or town clerk; whereupon the same proceedings shall be had as in cases where persons or parties are aggrieved by the award of damages by selectmen for land taken for a town way." This section is a re-enactment of St.1868, c. 160, § 8; and it is manifest that after the passage of St.1873, c. 261, § 1, and before the passage of the Public Statutes, a person aggrieved had a right to a trial by a jury in the superior court. And we are of opinion that the fact that section 8, St.1868, has been retained in the Public Statutes without change does not prevent such a person from resorting to the provisions of Pub.St. c. 49, § 105, in which St.1873 is incorporated. See Grimshaw v. City of Fall River, (Mass.) 36 N.E. 494.

2. The measure of damages was correctly stated to the jury. It was the difference between the fair market value of the land before the act of the board of health and such value afterwards. Moulton v. Water Co., 137 Mass. 163, 167. See, also, Providence & W.R. Co. v. City of Worcester, 155 Mass. 35, 29 N.E. 56. The jury were carefully instructed that any nuisance on the petitioner's own land, in order to be chargeable to the respondent, must be the result of the act of the board of health, and that, unless the construction resulted in a nuisance, the evidence of a subsequent nuisance was immaterial. The respondent contends that a view which was taken by the jury furnished opportunity to the jury to infer neglect in maintaining the drain; but we see no evidence in the bill of exceptions tending to show neglect on the part of the board of health, or that any such contention was made by the petitioner. There was a dispute between the parties as to whether the drain brought sewage and foul odors upon the petitioner's land, but we find nothing in the exceptions to show that this was caused by any neglect on the part of the board in maintaining the drain, in distinction from its original construction. The instruction requested was therefore properly refused.

3. The remaining questions arise on the refusal of the court to give the third and fourth requests for instructions. No exception was taken to the ruling given. The ground upon which a person who is injured by the exercise of the right of eminent domain, or of a right akin to it, is precluded from recovering his damages on account of what he has said or done, is frequently spoken of in the Reports as resting in waiver, (Fuller v. Commissioners, 15 Pick. 81; Seymour v. Carter, 2 Metc. [Mass.] 520; Hildreth v. Lowell, 11 Gray, 345, 352; Bell v. Boston, 101 Mass. 506, 510;) but in all the cases to which our attention has been drawn there has been either an agreement founded upon a valuable consideration, or the act relied upon as a waiver has been of such a kind as to estop a person from insisting upon the claim given him by law. Thus, in Seymour v. Carter, ubi supra, which was a petition for a jury to assess damages caused by the flowing of the petitioner's land by the respondent's dam, there was evidence that the petitioner urged the building of the dam, and promised that if it should overflow his land, he would not ask any damages. This evidence was held to be competent, on the ground stated by Chief Justice Shaw, as follows: "For the...