Drury v. Butler

• Decision Date: 19 May 1898
• Citation: Drury v. Butler, 171 Mass. 171, 50 N.E. 527 (Mass. 1898)
• Parties: DRURY v. BUTLER et al.
• Court: Supreme Judicial Court of Massachusetts

171 Mass. 171

50 N.E. 527

DRURY v. BUTLER et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 19, 1898

COUNSEL

Geo. W. Morse J.B. Goodrich, and T.J. Kenny, for plaintiff.

L.S Dabney and F.L. Washburn, for defendants.

OPINION

KNOWLTON J.

The defendants' intestate, an attorney and counselor at law agreed with the plaintiff, for a valuable consideration, to preserve the plaintiff's rights, and to protect his interests, in reference to the taking of a strip of land by the town of Framingham for the construction of a sewer; and the plaintiff intrusted his business to him. He allowed more than two years to elapse after the taking without bringing a suit or taking any measures to obtain damages for the plaintiff, whereby, as the plaintiff alleges the right to recover damages from the town was lost. This action was brought to recover damages for the breach of the contract to protect the plaintiff's interests. The town was acting under St.1887, c. 403. On the 20th day of February, 1888, at a meeting duly called, it had voted to accept the act. In the same year it employed contractors, and laid a sewer through the plaintiff's land, which it fully completed in the summer of 1889. Apparently, it adopted and completed a system of sewerage under the authority of the statute. It had complied with section 2 of the statute, which provides that no act shall be done in the construction of a sewer until the system and location have been approved by the state board of health after a hearing, the time and place of which are to be made known by publication of an official notice thereof. All this was done without any formal taking of the plaintiff's premises and filing of a description thereof in the registry of deeds, as required by the statute. In September, 1889, the plaintiff employed the defendants' intestate, and he brought an action of trespass against the town for the unlawful entry upon the plaintiff's land. This action was pending until it was settled, on July 3, 1896, by the payment to the plaintiff of $800 as damages, and one-half of the taxable costs. On November 17, 1890, at a meeting duly called, the town voted "that the town take and seize, under provisions of chapter 403 of the acts of the commonwealth passed in the year 1887, all such land, water rights, rights of way, and easements in the towns of Framingham and Natick as are, in the judgment of the selectmen, necessary for its system of sewage disposal, and connections therewith, and that the selectmen be a committee, with full power to do, all and singular, any and all acts and things necessary for such taking and seizure, with authority to employ counsel and incur all necessary expenses." On December 6, 1890, the selectmen filed, and caused to be recorded in the registry of deeds, a description of a strip of the plaintiff's land, 34 feet wide, running the entire length of his lot, namely, 1,552 feet, and of certain other lands, which taking purported to be by the town, acting by its selectmen, under authority of the statute and of the vote above quoted, and recited that the land was taken for the purposes mentioned in the act and in the vote, for the sole use and benefit of the town of Framingham. The defendants' intestate was soon afterwards notified of this taking, and he then made the agreement above stated in regard to it. Under the statute, a petition for the assessment of damages caused by the taking of land could be filed within two years from the taking, and not afterwards. St.1887, c. 403, § 4. The plaintiff, by a deed dated June 29, 1896, released to the town of Framingham this land, for a valuable consideration; and it was stipulated in connection with the settlement of his suit for trespass, and in connection with the making...