Flower v. Town of Billerica

• Decision Date: 05 July 1949
• Citation: 324 Mass. 519,87 N.E.2d 189
• Parties: FLOWER v. TOWN OF BILLERICA (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 519

87 N.E.2d 189

FLOWER

v.TOWN OF BILLERICA (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 7, 1949.

Decided July 5, 1949.

Exceptions from Superior Court, Middlesex County; F. J. Good, Judge.

Petitions by David Flower against town of Billerica for assessment of damages resulting from taking by eminent domain of easements for highway purposes in certain private ways and alleged taking of exclusive easement to maintain water system in those ways. To review refusal of his request for rulings and findings and rulings of court, petitioner files exceptions.

Exceptions overruled.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and SPALDING, JJ.

W. Kopans, Boston, for plaintiff Flower.

P. H. Ready, Lowell, for defendant.

WILKINS, Justice.

These two petitions for the assessment of damages resulting from the taking by eminent domain of easements for highway purposes in certain private ways near Nuttings Lake in the respondent town allege a taking of the petitioner's exclusive easement to maintain a water system in those ways. For the background of the controversy, see proceedings for trespass prior to the takings. Suburban Land Co., Inc., v. Billerica, 314 Mass. 184, 49 N.E.2d 1012, 147 A.L.R. 660;Flower v. Billerica, 320 Mass. 193, 68 N.E.2d 697. The first petition now before us relates to a taking on March 22, 1940, on Marshall Street, Burtt Road, Cherry Road, and Pine Road, and the second to a taking on August 23, 1943, on Lake Street. The petitioner's exceptions are to the refusal of his requests for rulings and to ‘the findings and rulings of the court.’

The judge filed the following: ‘Court finds and rules plaintiff's easement was not exclusive of the defendant's right to take an easement by way of eminent domain. At the time of the trespass the plaintiff was engaged in the business of selling water; following the trespass and prior to the taking, no business was conducted by the plaintiff on the streets involved in these proceedings. The plaintiff has been paid by the defendant for damages due to trespass. In these proceedings the court finds and rules that the plaintiff has suffered no damage for which the defendant is answerable. Court finds for the defendant. These findings and rulings dispose of the plaintiff's requests for rulings.’

Two of the petitioner's requests were: ‘1. The plaintiff, at the time of the taking by the defendant, was the owner of the exclusive easement in Lake St., Marshall St., Burt St., Pine St. and Cherry St. for purposes of a water system. 2. The plaintiff, as the owner of the exclusive easement in Lake, Marshall, Burt, Pine and Cherry Streets, is entitled to recover damages, for the value of said easement, upon the taking by the defendant by eminent domain.’

The petitioner's rights were acquired as grantee under a deed dated May 23, 1935, from Suburban Land Company, Inc. On that date the land company foreclosed a mortgage given to it by the Nuttings Lake Water Company, Inc., and the petitioner acquired at the foreclosure sale all the right, title, and interest of the water company. Suburban Land Co., Inc. v. Billerica, 314 Mass. 184, 186, 49 N.E.2d 1012, 147 A.L.R. 660. The foreclosure deed conveyed certain lots, structures, and equipment, and ‘The sole and exclusive right (subject only to rights taken by eminent domain) to lay, maintain, operate, repair and remove, pipes, mains, fixtures and other conduits for the distribution of water through the following described real estate * * * [including the ways in question]. In case of taking by eminent domain of any right, interest or property conveyed herein, all damages and compensation therefor shall be paid to the grantee.’ In Suburban Land Co., Inc., v. Billerica, 314 Mass. 184, 190, 49 N.E.2d 1012, 1016, we said, ‘We are of opinion that the land company never parted with the fee in the streets in controversy and could, and did, convey in 1924 to the Nuttings Lake Water Company, Inc., an exclusive easement in these streets for purposes of a water system, to which easement the plaintiff Flower succeeded by the foreclosure deed of 1935.’

The ‘exclusive easement,’ however, was expressly made ‘subject only to rights taken by eminent domain.’ This phrase qualified the easement granted. See Brown v. South Boston Savings Bank, 148 Mass. 300, 304, 19 N.E. 382; McRae v. Pope, 311 Mass. 500, 504, 42 N.E.2d 261. The words ‘subject to,’ used in their ordinary sense, mean ‘subordinate to,’ ‘subservient to,’ or ‘limited by.’ Englestein v. Mintz, 345 Ill. 48, 61, 177 N.E. 746;McCarter v. Crawford, 245 N.Y. 43, 46, 156 N.E. 90;Percival v. Williams, 82 Vt. 531, 547, 74 A. 321;Kelly v. Smythe, 61 Wyo. 209, 226, 157 P.2d 289. The petitioner's easement, therefore, was not ‘exclusive’ of the easements taken by eminent domain by the respondent in these two cases. Nor could it in any proper legal sense be said to have been taken by the mere taking of a concurrent and competing easement.

The petitioner suggests in his brief that the phrase ‘subject only to rights taken by eminent domain’ was used ‘solely for the purpose of eliminating any warranty by the grantor to the grantee that the property would not be taken by eminent domain’; and that this phrase and the provision that damages for a taking by eminent domain should be paid to the grantee ‘indicate that the grantee was to look solely to the town’ for such damages. The concluding portion of the suggestion is, of course, a truism. The suggested purpose, moreover, would have been entirely superfluous even had there been a warranty deed. Covenants of warranty in a deed refer only to rights outstanding at the time of delivery and not to rights subsequently acquired. The exercise of the sovereign power to take by eminent domain is not a breach of any of the ordinary covenants, which ‘do not warrant against those fundamental liabilities to action on the part of the sovereign power which lie behind all private titles.’ Goodyear Shoe Machinery Co. v. Boston Terminal Co., 176 Mass. 115, 117, 57 N.E. 214, 215. See Ellis v. Welch, 6 Mass. 246, 250,4 Am.Dec. 122;Parks v. Boston, 15 Pick. 198, 205;Boston & Hingham Steamboat Co. v. Munson, 117 Mass. 34, 39-40;Kares v. Covell, 189 Mass. 206, 209, 62 N.E. 244,91 Am.St.Rep. 271; Rawle, Covenants for Title, 5th Ed., § 129. Nor can private individuals effectively contract that property will not be taken by eminent domain. Brimmer v. Boston, 102 Mass. 19, 22;Edmands v. Boston, 108 Mass. 535, 544;Burt v. Merchants' Ins. Co., 115 Mass. 1, 15.

There was no error in ruling that the petitioner's easement was not exclusive of the respondent's...