Johnson v. City of Boston

• Decision Date: 24 February 1881
• Citation: 130 Mass. 452
• Parties: John Johnson v. City of Boston
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

130 Mass. 452

John Johnson v. City of Boston

Supreme Court of Massachusetts

February 24, 1881

Middlesex.

Exceptions sustained.

J. G Abbott, for the petitioner.

E. P Nettleton, for the respondent.

Morton, J. Colt & Field, JJ., absent.

OPINION

Morton, J.

This is a petition for the assessment of damages for land taken by the defendant for a storage reservoir, under the St. of 1872, c. 177. The petitioner's land is situated in Framingham, and Stony Brook, a tributary of the Sudbury River, runs through it. One of the questions at the trial was whether, under the statute, the petitioner was deprived of the right to use the waters of Stony Brook for ordinary domestic and household purposes. The first section authorizes the city of Boston to take, hold and convey into the city "all the water of Sudbury River," "and the water of Farm Pond," "and the waters which may flow into and from said river and pond, and to take any water rights in or upon said river or pond, in or above the town of Framingham, or connected therewith." The fourth section provides that "nothing contained in this act shall be so construed as to authorize the city of Boston to reduce the water in Sudbury River" below a certain height, "or to prevent the inhabitants of the towns of Framingham, Ashland, Southborough, Hudson and Westborough, from taking from the Sudbury or Assabet Rivers or Farm Pond so much of the water hereby granted as shall be necessary for extinguishing fires, and for all ordinary domestic and household purposes, and for the generation of steam, or from cutting and carrying away ice from said pond; or as to prevent the Boston and Albany Railroad Company, or the Mansfield and Framingham Railroad Company, or the Boston, Clinton and Fitchburg Railroad Company from taking water from Farm Pond, for use in locomotive or other engines, or for other railroad purposes, under such regulations of the city council of the city of Boston as may be essential for the preservation of the purity of the same." The petitioner contends that, by these sections, he is deprived of the right to use the water of Stony Brook for domestic purposes, and should have damages allowed him therefor.

If we were to adopt the strictest construction of the language of § 4, such might be the result. But we do not think that this was the intention of the Legislature. There is no reason why the inhabitants who border upon the small tributary streams which run into the Sudbury River should not have the right to use the water for domestic purposes, as well as those who border upon the Sudbury River. It is true that, in the clause saving to the inhabitants the right to take so much of the granted waters as shall be necessary for extinguishing fires or for domestic purposes, the small tributaries which flow...