Markiewicus v. Town of Methuen

• Decision Date: 28 June 1938
• Parties: MARKIEWICUS et al. v. TOWN OF METHUEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 560

16 N.E.2d 32

MARKIEWICUS et al.

v.TOWN OF METHUEN.

Supreme Judicial Court of Massachusetts, Essex.

June 28, 1938.

Suit by Elizabeth Markiewicus and husband against the Town of Methuen. From the decree, plaintiffs appeal.

Affirmed.Appeal from Superior Court, Essex County; Williams, Judge.

R. A. A. Comparone, of Lawrence, for plaintiffs.

M. A. Cregg, of Lawrence, for defendant.

DOLAN, Justice.

This is a suit in equity wherein the plaintiffs seek to have the defendant town of Methuen restrained from maintaining a sewer, owned by and under the control of the defendant, on the plaintiffs' land, and to recover damages for the use had by the defendant of the land, and for injuries resulting from ‘breaks' or ‘cave-ins' of the sewer. The case was tried in the SuperiorCourt, and the judge refused injunctive relief and ordered the entry of a final decree for the plaintiffs for damages for injuries caused by two of the three sewer ‘breaks' alleged. It comes before us on the plaintiffs' appeal from the final decree.

The evidence is reported and the judge made a finding of material facts. Questions of fact as well as of law are thus before us, and it is our duty to examine the evidence and decide the case according to our own judgment, giving due weight to the findings of the judge whose decision, based upon the hearing of oral testimony, will not be reversed unless plainly wrong. See Martell v. Dorey, 235 Mass. 35, 40, 126 N.E. 354;Edwards v. Cockburn, 264 Mass. 112, 120, 162 N.E. 225;Brooks v. Bennett, 277 Mass. 8, 14, 177 N.E. 685;Adams v. Silverman, 280 Mass. 23, 26, 182 N.E. 1;Kevorkian v. Moors, Mass., 12 N.E.2d 111.

The plaintiffs, who are husband and wife, became the owners in 1923 of certain land, with two buildings of three tenements each thereon, situated on Camden Street in the defendant town. From 1891 to October 26, 1895, the property was owned by one Davis, and from October 26, 1895, to 1906, by one Kenyon or his widow. After 1906 several persons owned the property involved before it was acquired by the plaintiffs. It was agreed that in none of the deeds affecting the property was there any mention of the sewer, and that no instrument or document giving notice of the existence of the sewer was filed in the registry of deeds. There was evidence tending to show that the plaintiffs had no knowledge of the existence of the sewer until a ‘break’ occurred on January 10 1935, although, in fact, their premises were served by it. In 1936 two other ‘breaks' occurred, one in April and the other in December. There was also evidence to show that the sewer was laid out in the following manner: At the annual town meeting in 1894 a committee was chosen to investigate the project of constructing a sewer through a certain tract of land which included the land now owned by the plaintiffs. At a special town meeting in June, 1894, the committee presented its report, and the town thereupon voted to construct the sewer under the authority and direction of the road commissioners and appropriated money for the purpose. The road commissioners proceeded to cause the sewer to be built. At a meeting in March, 1895, the town voted that the treasurer be authorized to borrow money to pay for the sewer built under the vote of June, 1894. At the annual town meeting in March, 1896, the town voted in accordance with the provisions of Pub.Sts. c. 50, § 7, to accept and adopt the sewer system of sewage in question together with proposed branches as shown on a plan on file in the town clerk's office, and that assessments under section 4 of said chapter be made. The assessments were made under a warrant dated December 12, 1896.

After the vote of June, 1894, an agreement was made between the road commissioners and each owner of property abutting on the course of the proposed sewer, including the then owner, Davis, that the owners would be exempt from assessment and that they should demand no damages for the taking. As a result of this agreement, no damages were ever claimed by the then or succeeding owners until the present bill was filed. The foregoing facts are in substance found by the judge, but he found that no betterment assessment was levied. It is established by the evidence that an assessment was levied on the property, now owned by the plaintiffs, against Kenyon who purchased it in October, 1895. However, in accordance with the terms of the agreement between Davis, the former owner, and the town, the assessment was abated.

The judge also found that the sewer was constructed sometime in 1895, but did not expressly find who was in fact the owner of the premises involved at the time of its actual construction. It is apparent from the evidence of the records of the town meetings, however, that the sewer was constructed, at the latest, before the town meeting in March, 1895, while Davis was the owner of the property.

By the statutes in force at the time, where land was taken for a sewer, the road commissioners were required to give written notice to the landowners, seven days at least before taking action, of their intention to locate and maintain the sewer, and also to file in the town clerk's office the layout, with the boundaries and measurements, seven days at least before the meeting when action was to be taken by the town on their report. Pub.Sts. c. 50, §§ 1, 2; c. 49, §§ 67, 71.

It appears from the evidence that no written notice to the landowner was ever given, and that the layout required by the statute was not filed. The plans of the sewer filed with the town clerk had no boundaries or measurements to indicate the amount of land taken, and they did not bear the signatures of the road commissioners, any identification, or a filing date. The plans, together with the report of the commission...