Kronoff v. City of Worcester
| Citation | 234 Mass. 254,125 N.E. 394 |
| Parties | KRONOFF v. CITY OF WORCESTER (two cases). |
| Decision Date | 16 December 1919 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Worcester County; Franklin T. Hammond, Judge.
Petitions by Clara M. Kronoff against the City of Worcester to recover damages for the taking of land and water rights. Findings for respondent, and petitioner excepts. Exceptions overruled.
Petitioner's requests for rulings follow:
[234 Mass. 255]1. Upon all the record the petitioner is entitled to a finding that the millowners had only a revocable license to maintain the dam.
[234 Mass. 256]2. Upon all the record the petitioner is entitled to a finding that the only rights of the millowners in the said dam were as licensees under a license which was revocable at any time at the pleasure of the petitioner.
3. Upon all the record the millowners did not have a perpetual right to maintain and use the dam.
4. Upon all the record the millowners did not have a vested and permanent right to maintain said dam subject to a charge of an annual payment of $2 to the owners of the Kronoff land and $4 to the owners of the Battelle land.
5. Upon all the record the petitioner is entitled to receive as damages on account of the taking of said water and water rights the further sum of $1,500, with interest from February 15, 1912, in addition to the award of $1,000 made in the fourth paragraph of page 8 of the report.
Respondent's fourth request for ruling follows:
4. Upon the facts found by the referees the plaintiff is not entitled to recover ‘on account of the taking of said water and water rights $1,500 additional to the award of $1,000’ made for water rights.Marvin M. Taylor, of Worcester, for plaintiff.
John W. Mawbey, City Sol., and Frank L. Riley, Asst. City Sol., both of Worcester, for respondent.
These are two petitions to recover damages for the taking of certain land and water rights. The cases were referred to three referees by a judge of the superior court under a rule, agreed to by the parties, that the findings of fact of the referees should be final; they made a report and a supplementary report, both of which are annexed to and make a part of the bill of exceptions.
The cases were afterwards heard by a judge of the superior court, who filed a memorandum of decision and ruled that the petitioner was not entitled to recover for the taking of water and water rights the sum of $1,500 in addition to $1,000, the amount awarded by the referees.
The petitioner owned a farm in the town of Holden, through which ran the Asnebumskit brook, so called; for a part of its course the petitioner owned the land on both sides of the brook, and for another part of its course the thread of the stream was the dividing line between the petitioner's land on the south and land of other owners on the north, referred to in the record as the ‘Battelle land.’ In 1912 the respondent, acting under St. 1900, c. 365, and St. 1902, c. 351, took all the waters and water rights of the brook, and in 1914 and 1915, acting under the same statutes, it took in fee certain portions of the petitioner's land. After these takings, the city commenced the construction of a large dam upon that portion of the brook which ran between the petitioner's land and the Battelle land. The referees found:
The exact time of the construction of the dam does not appear. The earliest documentary evidence is contained in a writing dated July 18, 1838, and is as follows:
‘To the Eagleville Mfg. Co.-Gent.: We hereby give you the privilege of bounding and butting a dam on our land in Holden adjoining land of Joseph Hubbard, we reserving the right of damage that may accrue in consequence thereof.’
It was signed by John Battelle, Jr., and John Shunway, Joseph Hubbard, who was mentioned in this writing, was at that time the owner of the land now owned by the petitioner; but as he was not a party to it, it is clear that it authorized the building of the dam only upon that portion of the brook owned by Battelle and Shumway.
By an instrument under seal dated May 9, 1847, Hannah Battelle and Abigail Shumway (who are described as the ‘owners and tenants in common’ of the land on the opposite side of the brook from that now owned by the petitioner) leased to Le Barron Putnam and his heirs and assigns the right to maintain the dam then existing ‘at its present height’; Putnam and his heirs and assigns agreed to pay the owners and their heirs and assigns a yearly rental of $4 therefor. He also covenanted that if Battelle and Shumway or their heirs and assigns should pay to him or to his heirs and assigns the sum of $800, he would relinquish his rights in the dam to them ‘and give good sufficient deed to effect the same.’
There is nothing to show that Battelle and Shumway or their successors in title ever attempted under this clause in the deed to acquire the rights of Putnam or his successors in title to the dam, and it is found that the rent payable under the agreement has been paid by the mill owners for more than 60 years.
On May 8, 1848, a written appraisal was made by referees of the damages ‘of flowage and taking gravel * * * on land of Messrs. Battelle and Shumway and Joseph Hubbard, by means of a certain dam erected by Le Barron Putnam and others'; Battelle and Shumway being awarded $3 to be paid annually forever as damages for flowing their land, and $5 for gravel taken to build the dam; Joseph Hubbard was awarded $2 to be paid annually forever, and $5 for gravel taken to build the dam; ‘all of said sums we award to be paid by the mill owners below or by said Le Barron Putnam during the continuance of flowing said land.’ When this award was made, Joseph Hubbard was the owner of the land now owned by the petitioner.
The first conveyance thereafter, of the land now owned by the petitioner, was in 1851 by the administrator of the estate of Joseph Hubbard; in 1865 by two quitclaim deeds the title passed to Cyrus Hubbard, no reference to water rights or easements is made in either of the...
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...v. Couillard, 129 Mass. 231, 233), but that does not make the principle just stated any the less applicable. Kronoff v. Worcester, 234 Mass. 254, 259, 260, 125 N.E. 394. The rights of the defendant were neither diminished nor enlarged by that deed. The language ‘Together with a privilege of......
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