Lynch v. Forbes

• Decision Date: 17 May 1894
• Citation: 161 Mass. 302,37 N.E. 437
• Parties: LYNCH SAME v. FORBES. SAME v. INHABITANTS OF TOWN OF BROOKLINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 302

37 N.E. 437

LYNCH SAME v. FORBES. SAME v. INHABITANTS OF TOWN OF BROOKLINE.

Supreme Judicial Court of Massachusetts, Norfolk.

May 17, 1894

Action by Daniel A. Lynch against Fayette F. Forbes for trespass to real estate. Defendant justified under Acts 1872, c. 343, and Acts 1888, c. 131, authorizing the town of Brookline to take land for the erection and maintenance of waterworks, and proved that the defendant was the servant and agent of, and acted under the direction of, the selectmen and water board of the town, and was the superintendent and engineer of its water works. The court refused to admit the evidence offered by the plaintiff, or to submit the evidence therein referred to to the jury, but did rule that the question as to whether or not the town had exceeded its authority, and taken more land than it was authorized to take, or any land not within the authority given by said acts, could not be tested in this suit; that the defendant had shown that the town had conformed to the formal requirements of the statute as to method of taking land, and that defendant's justification was complete,--and directed a verdict for the defendant, and, at request of the parties, reported the case to the supreme judicial court for determination Judgment on verdict for defendant.

Bill in equity by Daniel A. Lynch against the town of Brookline praying that the acts of the town in taking plaintiff's land be decreed to be void, and for other relief. The case was reserved, at the request of the parties, for the full court, upon the bill and demurrer. Bill dismissed.

COUNSEL

Geo Fred Williams and G.W. Anderson, for plaintiff.

M. & C.A. Williams, for defendant.

OPINION

MORTON J.

The principal questions involved in these two cases are the same and, by agreement of parties, they were argued, and are to be considered, together. The plaintiff contends, in both cases, that the taking was unlawful; and, at the trial of the case in trespass, he offered to show that prior to the taking in question the town had taken all the land that it needed, and that this was not suitable and was not necessary, useful, or proper, for any of the purposes named in the acts under which it was taken. The plaintiff concedes, what is well settled, that the question whether a necessity exists for the taking of private property for a public use is a legislative, and not a judicial, one. He does not deny that the taking of land for waterworks and a water supply for the general benefit of the inhabitants of a city or town is a taking for a public use; but he contends that where, as here, the authority is given "to take *** any land or real estate necessary," etc., the question of necessity, so far as it relates to the land actually taken, is one of fact, to be settled by the court or jury. Such has not been deemed to be the law in this state, though it is said, in a work of established authority, that the constitutions of some of the states require it to be done. Lund v. New Bedford, 121 Mass. 286; Eastern R. Co. v. Boston & M.R. Co., 111 Mass. 125; Dorgan v. Boston, 12 Allen, 223; Talbot v. Hudson, 16 Gray, 417; Cooley, Const.Lim. § 538, note. There is no constitutional right on the part of the landowners, in this state, to have the question of the necessity or expediency of the taking in any particular instance submitted to a court or jury. Holt v. Somerville, 127 Mass. 411. In the absence of any provision in the statutes submitting the matter to a court or jury, the decision of the question lies with the body or individuals to whom the state has delegated the authority to take. They have the same power as the state, acting through any regularly constituted authority, would have. Fall River Iron Works v. Old Colony & F.R. Co., 5 Allen, 226; People v. Smith, 21 N.Y. 597; Boom Co. v. Patterson, 98 U.S. 406; Railway Co. v. Brown, 9 H.L.Cas. 246; Lewis v. Board, 40 Ch.Div. 55; Cooley, Const.Lim. § 538. See Lewis, Em.Dom. § 238, note, for collection of cases. Of course, neither the state nor its delegates can take, under the guise of eminent domain, the property of A. for the purpose of conveying it to B., or for a purpose clearly in excess of, or at variance with, the powers granted. No question of good faith, however, arises here, and the purpose for which the land was taken is within the scope of the acts authorizing it. The testimony that was offered was therefore rightly excluded, as was also that offered for the purpose of showing that the town was obtaining water from land taken in February, 1889, and that a part, at least, of the water thus taken did not come from the river by percolation. The validity of the taking now in question does not depend on the conduct of the town in regard to another and an earlier taking.

The plaintiff further contends that the formal...