Malinoski v. D.S. McGrath, Inc.

• Decision Date: 23 May 1933
• Citation: 186 N.E. 225,283 Mass. 1
• Parties: MALINOSKI et al. v. D. S. McGRATH, Inc. SAME v. CITY OF NORTH ADAMS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 1

186 N.E. 225

MALINOSKI et al.

v.D. S. McGRATH, Inc.

SAME

v.CITY OF NORTH ADAMS.

Supreme Judicial Court of Massachusetts, Berkshire.

May 23, 1933.

Appeals from Superior Court, Berkshire County; W. A. Burns, Judge.

Suit by Kazimierz Malinoski and others against D. S. McGrath, Incorporate, and against the City of North Adams. From an adverse decree, plaintiffs appeal.

Affirmed.Walter J. Donovan, of Adams, for appellants.

E. K. McPeck, of Adams, for appellee D. S. McGrath, Inc.

P. J. Ashe, City Sol., of North Adams, for appellee City of North Adams.

RUGG, Chief Justice.

These two suits in equity are brought to secure the removal of a concrete wall and filling placed upon the land of the plaintiffs and for damages. One is against the city alleged to have ordered the work to be done, and the other against the contractor alleged to have performed the work. Each defendant averred in its answer that the constructions and work of which the plaintiffs complain were ordered by the commissioner of public works of the city, and that the land described in the plaintiffs' bill was taken by him in connection with the great flood of November, 1927, in accordance with law, because he was clothed with the powers of road commissioner of towns for the protection of streets. The answer of the defendant city amplifies the description of the great flood and avers that an emergency existed which required instant action to protect streets and public property and that such action was taken by the commissioner of public works. It also sets up a subsequent formal taking by the city council of the land of the plaintiffs.

A master was appointed. His comprehensive findings of facts, the evidence not being reported, must be accepted as true. Those findings, so far as material to the grounds of this decision, are as follows: The plaintiffs, in November, 1927, owned a lot of land lying between Willow Dell, a public street in the city of North Adams, and the north branch of the Hoosac River, having a frontage of about forty-one feet on the easterly side of the street, a shore line of about fifty-three feet, and a depth of about seventy-five feet. They were also in possession under contract of purchase of an adjacent strip about 20 feet in width between street and river of which they have subsequently become owners. On November 3, 1927, very unusual flood conditions existed in the river, so that considerable property in that region was laid waste. The force of the waters tore out a stone retaining wall ‘higher than a man's head,’ which for years had stood as a barrier along the river bank, partly on the plaintiffs' land and apparently partly on the land of other riparian owners, swept away the plaintiffs' house and its foundations leaving not a vestige behind, uprooted trees on their land, stripped the soil to a depth of five or six feet, and deposited on their lot large rocks washed down from upstream. It did not appear when or by whom the stone retaining wall had been built. Twelve other buildings were swept away on the same side of Willow Dell, and on its opposite side the foundations of buildings were undermined. Willow Dell, which was about one fifth of a mile long, was washed so deeply as to expose to view gas, water and sewer pipes buried in it, and to bend and break some of them. Bridges were carried away and other streets badly washed and filled with wreckage. As soon as the flood subsided, at a conference of the male plaintiff with the mayor and city engineer of the city, the former refused to sign a paper giving consent to some public improvement on the devastated land owned by himself and his wife, and he stoutly objected to the project without his consent. The commissioner of public works of the city, after consultationwith members of the street and finance committees, advertised for bids for the construction of a ‘Willow Dell wall’ so called. On November 15, 1927, agreement for performance of the work was signed by the contractor and in the name of the city by the commissioner of public works, and approved by the mayor. There was no evidence that this contract was first authorized, or was subsequently expressly ratified, by vote of the city council, or that ‘an anticipatory appropriation of money was made’ to pay the cost of the work to be done under the contract. The master drew the inference that payments due under the contract were made out of the city treasury. The commissioner of public works has ‘cognizance, direction and control’ of the construction and repair of streets and sidewalks, sewers and drains and waterworks, and except as otherwise provided has the powers and duties of road commissioners of towns. St. 1895, c. 148, § 37, as later amended by Sp. St. 1918, c. 103, § 15. His object in executing this contract was to protect Willow Dell and the private property on each side of it from future encroachments by the river, but he never purported to take by eminent domain any part of, or any right in, the land of the plaintiffs under G. L. (Ter. Ed.) c. 79. Pursuant to the contract a solid contrete wall was built between Willow Dell and the river, about a fifth of a mile in length, from Miner to Union Streets. When, to carry out the plan, entry was made upon the plaintiffs' land, it was in the condition in which the flood had left it. The commissioner of public works decided where the wall should be placed and he or his appointee gave the contractor lines to follow in construction. This wall is nine feet high above its foundation, which is seven or eight feet wide and four feet deep, and tapers to a width of sixteen to eighteen inches at the top. On the plaintiffs' land it was not placed on the line of the old wall but was set farther back from the river for some distance, to that extent reducing the depth of their lot between street and wall. A new area of about eighteen hundred square feet of the plaintiffs' land thus was thrown on the river side of the wall and rendered practically useless. Large rocks were placed against the wall on both sides. The land of the plaintiffs was filled to a uniform grade from the top of the wall to the street line. The effect of the widening of the channel of the river was to reduce the elevation to which it might rise in times of high water and to lessen the strain to which the wall would be put by the pressure or the impact of a great volume of rushing water. From an engineering standpoint, the location of the new wall is better than that of the old. Willow Dell is somewhat crescent in shape, with the convex side toward the west, but the new wall, instead of following a curved line, consists of straight sections of concrete, with an occasional change of direction between one section and the next. The vertex of one of the obtuse angles thus formed is on the plaintiffs' land. The plaintiffs did not know of the making of the contract, and their land was entered upon and used without their express consent; but they knew about the work, took no steps to prevent it, and did not remonstrate with the contractor or any person representing him, but expected compensation and demanded a price grossly excessive accoring to the findings.

There was no public emergency imperatively requiring entry upon the land of the plaintiffs for the construction of the wall. That founded on the flood had passed and there was no similar exigency present or impending at the times of the acts here in issue, except as floods due to excessive snow or rain might constitute a danger.

It is apparent from the entire record that the parties defendant and the commissioner of public works acted in good faith and for the promotion of the public welfare so far as that may be a factor, notwithstanding the contention of the plaintiffs that entry upon their land was not warranted.

The commissioner of public works, possessing the powers of road commissioners of towns, was authorized to ‘enter upon, use or survey or take by eminent domain under chapter seventy-nine any land’ which he deemed ‘necessary for the purpose of securing or protecting a public way.’ G. L. (Ter. Ed.) c. 84, § 10. The context indicates plainly that the words ‘enter upon,’ ‘use’ and ‘survey’ in this section import a temporary and comparatively brief period of occupation of privately owned land. While the word ‘use’ may signify an occupation longer than that needed for an entry upon or a survey, it falls short of describing a permanent possession. The only part of the statutory power sufficiently broad to cover what has been done upon the land of the plaintiffs is that authorizing a taking ‘by eminent domain’ under chapter 79. The authority to ‘take any land’ in that connection was conferred first by St. 1868, c. 264. See Pub. St. c. 52, § 14; R. L. c. 51, § 14; St. 1917, c. 344, part 4, § 21. Those statutes contained no direction as to the way in which such taking should be made. To what extent under those enactments a taking could have been accomplished by acts in pais need not be determined. Bryant v. Pittsfield, 199 Mass. 530, 85 N. E. 739. Compare Mayo v. Springfield, 136 Mass. 10, because, when the General Laws were enacted, there were inserted in the section as theretofore framed, after the word ‘take’ the further words ‘by eminent domain under chapter seventy-nine.’ This addition was something more than a verbal change in the revision of a statute, not varying its meaning. It was an alteration of substance. Boston & Maine Railroad v. Billerica, 262 Mass. 439, 449, 160 N. E. 419. It was a limitation and a specification. It prescribes the only way in which the taking of land now can legally be made. The statute, chapter 84, § 10, in its present form discloses a plain purpose to require that the taking be made according to the procedure and with the formalities prescribed by chapter 79. The contention is not tenable that chapter 84, § 10, authorizes a taking by road commissioners by acts in pais on the ground that by chapter 79,...