Report from superior court, Middlesex county; J.B. Richardson, Judge.
Separate writs of entry by Edward S. Howe and by five others against the city of Lowell. The superior court ruled in favor of demandant in each case, and reported the cases to the supreme judicial court. Judgment for tenant, except in the Howe case.
The court found on certain matters as follows, viz.:
“In the fall of 1889 and spring of 1890 the city of Lowell purchased from the several owners thereof a strip of land along the northerly bank of the Merrimack river, about one and one-half miles in length from the easterly to the westerly end, and varying in width from two hundred to six hundred feet or thereabout, the lands conveyed by the deeds above mentioned being the westerly portion of said strip. The land conveyed by Joseph M. Wilson and Benjamin C. Morrison, being the lot on said plan marked ‘B,’ was conveyed to the city, without consideration and as a gift.
“On November 27, 1889, a resolution was duly passed by the city council of Lowell, and approved by the mayor; and a public street, fifty feet in width, was laid out and accepted by the city council of Lowell, under and in pursuance of said resolution, such street running longitudinally through said strip of land, the northerly line of said street being the northerly line of said strip of land, and the northerly boundary line of the first tract described in said deed of Underwood to the city of Lowell, dated April 14, 1890, and the northerly boundary line of the tract described in each of said other deeds. Said public street also covered and included all of the second and third lots described in said deed of Underwood, dated April 14, 1890. That, within three years from the date of any of said deeds of the demandants, said street and a driveway or carriageway, seventy-five feet wide, were wrought and constructed through said strip of land; the said carriageway being parallel with said street, and about twenty-five feet distant therefrom, the intervening space being turfed over and planted with shade trees. (Said driveway is hereinafter called the ‘speedway,’ to distinguish it from said public street.) Trees were also planted along the northerly line of said street, and on the southerly line of said speedway. All this land was situated in the suburbs of Lowell, the easterly portion being nearest the city proper. Nearly all of it had been farming land before it was conveyed to the city. At about the time the street and speedway were constructed, the city expended considerable money in paths and improvements for park purposes in the portion situated nearest the city, but did not at that time expend any money for paths and improvements for park purposes except as aforesaid in that portion conveyed by the demandants. Since then there has been annually spent a considerable amount for extending and maintaining such improvements, all pursuant to a general plan designed by a landscape gardner for the improvement of the property for the uses and purposes described in said deeds. The actual work of construction of the park and boulevards under said general plan began on lands lying nearest the city, and down to the present time very little, if anything, has been done on the lands in question, except the construction of the street and speedway and the planting of trees as aforesaid. A large amount of dirt, two hundred loads or more, and turf, had been removed from lots F and B, to be used in filling and improving other parts of the land conveyed nearer the city, but pursuant to carrying out of the said general plan of improvement. Portions of the land embraced in said strip, lying near the river, including portions of the premises demanded in each of said writs, are low and sandy; and the water of said river covers the same during periods of high water, and deposits sand and silt thereon, rendering the land unfit for cultivation. That the land conveyed to the city of Lowell by each of the deeds above mentioned was, prior to the laying out of the street and the conveyances aforesaid, a part of a much larger tract then owned by the grantor or grantors in said deeds respectively. That one of said large tracts was owned by the demandants Wilson and Morrison as tenants in common, and one by the demandants Wilson and Clement as tenants in common. That the demandant Underwood owned two of such tracts, separated from each other by the two tracts owned respectively by the demandants Howe and Goodale. That these larger tracts of land were each bounded southerly by the Merrimack river, and extended northerly to Varnum avenue, so called, a public street, running nearly parallel with said river, and at a distance of from fifteen hundred to two thousand feet therefrom. That these lands, though a part of the city, were all quite a distance from the thickly-settled residential portion thereof, and used chiefly for agricultural purposes. The city paid for all of the lands so purchased, except the land of Wilson and Morrison, as aforesaid, the sum of two hundred and fifty dollars per acre for all such land except a portion thereof, namely, a strip one hundred and fifty feet in width which was included between the northerly line of said street and the southerly line of said speedway, which was excluded in estimating the area for the purpose of fixing the amount to be paid in each case.
“In October, 1891, the water board of the city of Lowell, duly authorized thereto, commenced experimenting in different parts of the city to test the feasibility of supplying the city with pure water by means of driven or artesian wells. Such experiments were conducted by driving iron pipes two and one-half inches in diameter from thirty to fifty feet into the ground, and, if water was thereby obtained, testing its quality. If no water was obtained, or the water was not of the quality desired, such pipes, with one or two exceptions, were removed, and the wells at that place were abandoned. In the prosecution of such experiments, in 1891, two such pipes were driven in the lot marked ‘B,’ two were driven in the lot marked ‘F,’ one was driven in the lot marked ‘E,’ and one was driven in the lot marked ‘C.’ A portable engine was used on different lots to pump the water from these wells in making the tests. In 1892, ten such pipes were driven in the lot marked ‘B,’ three in the lot marked ‘F,’ one in the lot marked ‘E,’ sixteen in the lot marked ‘C,’ one in the lot marked ‘A,’ and one in the lot marked ‘D.’ These wells were all connected by a pipe with a portable engine, and were pumped for a period of nine days or thereabouts. None of these experiments proving satisfactory, all of these pipes, with the exception of one or two, were withdrawn. But in these experiments the ground was in places dug up, and left in a rough condition, one or two pipes were left projecting above the surface, and, in a number of cases where the pipes were removed, the holes were not filled in, so that it was hardly safe to walk over it. Some trees originally on the land at the time of the conveyances were destroyed.A sluiceway was dug to carry off waste water to the river. Some refuse coal drawn for the engine was also left upon the ground. But in 1895, by order of said water board, there were driven into the land conveyed by said deeds of the demandants one hundred and forty such iron pipes, to the depth of thirty-five or forty feet. These pipes were driven in the land between the speedway and the river, most of them in the low land near the river; and said pipes were connected with an iron pipe through which the water is pumped by an engine, located as hereinafter set forth, from said wells into a large iron pipe running longitudinally in the speedway aforesaid. The water is conveyed from said large iron pipe by gravity into the conduit of the city. Of these wells, eighteen are located in the lot marked ‘E,’ seventy in the lot marked ‘C,’ twenty-seven in the lot marked ‘A,’ and twenty-five in the lot marked ‘D.’ The large iron pipe before mentioned runs in said speedway underground through each of said lots. This pipe is twenty-four inches in diameter, and was laid from four to six feet under the surface of the ground. The pump used for raising the water from said wells into said large iron pipe is a steam pump, and, together with the engine and boiler for operating the same, is placed in a wooden building which is about forty feet square, situated on the lot marked ‘A.’ All this has been done for the purpose of getting an additional water supply for the city and its inhabitants for all the purposes for which the city is authorized to procure water, the city receiving compensation for such water from the inhabitants who use it. These iron pipes or wells have been driven into the ground below the surface out of sight, and the large longitudinal iron pipe is also laid below the surface of said speedway; but, for a few weeks, during the experiments to test the water before it was finally determined to make the driven wells a permanent source of water supply, the iron pipes projected above the ground, and the pipe that connected them with the engine was not covered. It will, however, be necessary occasionally, about once or twice each year, to dig down to the top of the well pipes, a foot or so below the surface, and remove the caps of these pipes, and clean the same, and also to repair these pipes, and renew them whenever needed. Except on these occasions no part of said pipes will appear on the surface. When the longitudinal pipe was being laid, the speedway was dug up, and was substantially closed to public travel for about two weeks. At no time was permission asked of any of the demandants to make these experiments on the granted premises, nor...
