Inhabitants of Town of Greenfield v. Burnham

• Decision Date: 05 November 1924
• Parties: INHABITANTS OF TOWN OF GREENFIELD v. BURNHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 203

145 N.E. 306

INHABITANTS OF TOWN OF GREENFIELD

v.BURNHAM.

Supreme Judicial Court of Massachusetts, Franklin.

Nov. 5, 1924.

Appeal from Superior Court, Franklin County; Henry T. Lummus, Judge.

Bill in equity by the Inhabitants of the Town of Greenfield to restrain Frederick W. Burnham from infraction of by-laws establishing building lines, to compel him to make restoration of surface of sidewalks excavated by him, and to exact performance by him of stipulation made on his receipt of a license to excavate. Decree for defendant, and plaintiff appeals. Affirmed.W. A. Davenport, of Greenfield (C. Fairhurst, of Greenfield, of counsel), for appellant.

H. J. Field, of Greenfield (F. J. Lawler, of Greenfield, of counsel), for appellee.

WAIT, J.

This is a bill in equity seeking to restrain the defendant from infraction of by-laws establishing building lines on certain streets in Greenfield; to compel him to make restoration of the surface of sidewalks excavated by him, and to exact performance by him of a stipulation made on his receipt of a license to excavate. The answer denies the validity of the establishment of the building lines. A replication sets up that the defendant is estopped to object to the validity of the establishment of the building lines by the pendency of a petition filed by him for the assessment of damages caused by such establishment.

The cause was referred to a master who reported in substance as follows:

On February 2, 1923, the selectmen of Greenfield, acting under G. L. c. 82, § 37, which, with the provisions of earlier laws now embodied in said section, had theretofore been duly accepted by the town, gave a public hearing on the establishment of building lines on Main street and on Davis street. On the next day, the town clerk saw a plan of the proposed layouts in a vault in the town building where he kept town records. This vault was not in his office. It was not locked. It was used by the town clerk in common with many other officials of the town including the town engineer, all of whom had access to it. The plan has not then been delivered to him. It has not been left at his office, nor had it been called to his attention by any one. The town clerk, after he noticed it, made no record of the plan, nor did he mark it or identify it in any way until after the town meeting held March 17, 1923.

At a town meeting on March 17, 1923, the town, acting under articles in the warrant, ‘To see if the town will vote to accept building lines [on Davis street and on Main street] * * * as laid out by the selectmen February 2, 1923, or pass any vote or votes in relation thereto,’ voted unanimously to ‘accept building lines on [Davis street and Main street] as laid out by the selectmen on February 2, 1923.'

The plan was brought to the place of meeting by the town engineer and was exhibited and discussed at the meeting. After the meeting and on the same day, it was indorsed and signed by the town clerk, and, thereafter, it remained in his custody. Except this plan no other document or paper relating to the establishment of the building lines in question was ever filed in the office of the town clerk.

Portions of the defendant's property on the corner of Main street and Davis street were included within the building line areas shown on the plan on Davis street and on Main street.

About July 20, 1923, the defendant, without first obtaining a license therefor, made an excavation along both streets at their intersection. The by-laws of the town forbid any excavation in the highways without license of the selectmen; and, if any excavation is made under a license, they require restoration of the surface to the satisfaction of the selectmen before the expiration of the license. They authorize the selectmen to grant licenses but require the licensee to execute a written agreement to hold the town harmless and to indemnify it against damage or cost. The town, accordingly, at once filed a bill in equity to restrain the defendant; but dismissed the bill on his applying for a license. The license was granted July 25, 1923. The defendant signed a stipulation reserving his rights if the layouts of the building lines were invalid. After obtaining the license, which expired in thirty days, he made no further excavation; but did not, before the expiration of the license, fill in the excavation already existing.

On January 31, 1924, he filed a petition in the superior court for a jury to assess damages caused by the taking of land by establishing building lines. This petition is between the same parties and relates to the same land involved in this bill. It alleges a layout of building lines by the selectmen on February 2, 1923; a vote by the town on March [250 Mass. 207]17, 1923, at the annual town meeting to accept the building lines as laid out; a taking of valuable land from the petitioner causing him damage and loss as regards the land and buildings thereon for which he has been awarded no damage and has been unable to obtain adequate compensation; and a deprivation from utilizing his land for the purpose of erecting a building thereon to his great loss and damage. It alleges, further, that the petitioner ‘is aggrieved by the establishment of said building lines and the taking of his land,’ and prays that a jury may determine ‘the loss, injury and damage sustained by him by reason of the establishment of said building lines and the taking of said land.’ This petition is still pending and has not been tried.

On August 2, 1924, the defendant erected a brick pier in the excavation at the corner of Main street and Davis street. On this he proposes to support a steel column, to support in its turn steel beams for an addition to his present buildings which would constitute a new structure within the building line area. The plaintiff requested the defendant to remove the pier, fill the excavation and cease to erect buildings or structures within the building line area except ordinary and incidental repairs to present buildings and structures. The defendant refused to comply; and, on August 5, 1924, the present bill was brought. On the return day of an order of notice the defendant stipulated that he would ‘do no construction work outside the limits of the so-called building lines on the northerly side of Main street and the easterly side of Davis street until the further order of the court.'

The master reported that the excavations made by the defendant on Davis street and Main street about July 20, 1923, with the pier and the proposed structure for which the pier was designed, were within the property lines of the defendant and within the building line area; but at the hearing on confirmation of the report (to which no exceptions were taken) the judge found that there was error in this, and that, in fact, portions of the excavation thirty and one-half feet long by two feet wide on Davis street and ten feet long by two feet wide on Main street were within the highways and outside...