Morrison v. Selectmen of Town of Weymouth

• Decision Date: 02 July 1932
• Citation: 279 Mass. 486,181 N.E. 786
• Parties: MORRISON v. SELECTMEN OF TOWN OF WEYMOUTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 486

181 N.E. 786

MORRISON

v.SELECTMEN OF TOWN OF WEYMOUTH.

Supreme Judicial Court of Massachusetts, Norfolk.

July 2, 1932.

Report from Supreme Judicial Court, Norfolk County.

Petition for certiorari by William H. Morrison to have quashed the proceedings of the Selectmen of the Town of Weymouth in granting a license to the Standard Oil Company of New York to erect certain storage tanks.

Petition dismissed.W. B. Grant and C. B. Barnes, Jr., both of Boston, for petitioner.

F. G. Bauer, Town Counsel, Herbert Parker, and H. G. Gilbert, all of Boston, for respondents.

RUGG, C. J.

This is a petition for a writ of certiorari. The petitioner seeks to have quashed the proceedings of the respondents in granting on November 5, 1928, a license to the Standard Oil Company of New York to erect, maintain and use on a tract of land steel storage tanks for the keeping, storage and sale of petroleum products.

The hearing before the single justice was upon the petition and the return. No evidence was offered. A motion, presented by the petitioner at the beginning of that hearing, that the respondents be ordered to amend their return, was denied. The exception to this ruling is without merit. Ward v. Newton, 181 Mass. 432, 433, 63 N. E. 1064;Marinelli v. Board of Appeal, 275 Mass. 169, 175 N. E. 479.

The authority of the respondents to act in the premises was set forth in G. L. c. 148, § 14, as then most recently amended by St. 1928, c. 325, § 1, the events here under review having occurred before the enactment of St. 1930, c. 399, whereby said chapter 148 as amended was stricken out and a new chapter 148 inserted in its stead. The words of said section 14 here material are as follows: ‘No building or other structure shall * * * be used for the keeping, storage, manufacture or sale of * * * [petroleum products] unless the * * * selectmen shall have granted a license therefor after a public hearing * * * notice of the time and place of which hearing shall have been given, at the expense of the applicant * * * by the selectmen, by publication, not less than seven days prior thereto, in a newspaper published * * * in the city or town, wherein the land on which such license is to be exercised is situated, and also by the applicant by registered mail, not less than seven days prior to such hearing, to all owners of real estate abutting on said land. * * *’

1. The first ground of invalidity urged by the petitioner is that he as an owner of land abutting on the tract on which the license was to be exercised was not notified of the hearing as required by the governing statute. The return of the respondents shows that the application by the Standard Oil Company of New York for a license did not contain a definite description of the land on which it was to be exercised. It is there described as ‘premises to be acquired by said Company from the American Agricultural Chemical Company, embracing the property known as Lower Neck and Upper Neck off * * * the end of River Street. * * *’ The notice issued by the respondents and published as required by the statute followed the application in its phraseology. It gave no other description of the land on which the license was to be exercised. It makes no reference to plans or public records by which a fairly precise description of such land might be ascertained. The return further states that ‘With said application of said Standard Oil Company of New York there was filed with said Board of Selectmen a plan showing premises which said applicant proposed to acquire and on which said license was applied for, a copy of the material portions of which plan is hereto appended as Annex ‘A.’ Said plan when compared with the official Town survey maps, a copy of the material portion of which is hereto appended as Annex ‘B.’ showed that the only abutter to said premises on or within which the provisions of the said license were to be operative, was the American Agricultural Chemical Company; and these respondents certify and return that said Board of Selectmen accordingly found as a fact that said American Agricultural Chemical Company was the only abutter on said premises.' It appears from the plans annexed to the return that the tract of land owned by the American Agricultural Chemical Company is a peninsula comprising sixty-eight and four-tenths acres. On one plan is marked: ‘End of proposed purchase.’ Although not very clear, we think it susceptible of the inference that the proposed purchase included about the tip half-the half jutting into the water-of that peninsula, and excluded the half adjacent to the mainland. This proposed purchase, if effectuated, would constitute the American Agricultural Chemical Company the sole abutter, because its land alone would intervene between the proposed purchase and property of other owners abutting on the American Agricultural Chemical Company land on the side of the peninsula nearer the mainland. The license as issued substantially follows in its description of the tract to be used for its exercise the terms of the application and of the notice.

It is doubtful whether the petitioner can assail successfully the finding of the respondents to the effect that he was not an abutter upon the tract in question. It was said by Knowlton, J., speaking for the court in Collins v. Holyoke, 146 Mass. 298, 305, 15 N. E. 908, 914, that the statements in the official return ‘are to be taken as true, not only in those parts which set out the record * * but also in those which allege extraneous facts which might have been traversed, and perhaps controlled, by evidence.’ The burden rested upon the petitioner to prove by evidence outside the record, if necessary, that the respondents were without jurisdiction. Marcus v. Board of Street Commissioners, 252 Mass. 331, 147 N. E. 866. Proof that the petitioner was an abutter and had been given no notice was essential to this branch of the petitioner's case.

If, however, it be assumed in favor of the petitioner, without so deciding, that he was an owner of land abutting on some part of the large tract owned by the American Agricultural Chemical Company, he is not entitled to relief even though the return does not show that he was notified of the hearing in the way pointed out by the statute. It appears from the return that a protest against the granting of the license was signed by the petitioner two days earlier than the time appointed for the hearing and was filed at or before the hearing. No objection based on want of notice appears to have been made at any of the proceedings before the respondents. Actual notice received by a party affected by the proceedings, although not in the form or through the channel provided by the statute, usually bars him from relief by certiorari. Stone v. Boston, 2 Metc. 220, 228;Pickford v. Lynn, 98 Mass. 491, 495;Howland v. Greenfield, 231 Mass. 147, 149-150, 120 N. E. 394;Whitney v. Judge of the District Court, 271 Mass. 448, 459-461, 171 N. E. 648. Voluntary appearance by a party entitled to notice dispenses with the necessity of formal notice. It may confer jurisdiction. Paige v. Sinclair, 237 Mass. 482, 130 N. E. 177. See Bradley v. Board of Zoning Adjustment, 255 Mass, 160, 172, 150 N. E. 892. In these circumstances there was no want of jurisdiction in the respondent board to deal with the petition for license.

The hearing on the application was held on October 15, 1928, and the license was granted on November 5, 1928. The present petition was not filed until more than a year and four months later, on March 10, 1930. No excuse appears for such delay. Byfield v. Newton, 247 Mass. 46, 58, 59, 141 N. E. 658, and cases there collected. The case at bar is distinguishable from Hall v. Staples, 166 Mass. 399, 44 N. E. 351, where the petitioner had no knowledge of the proceedings of which he was entitled to notice until after the order was made and he was deprived of an opportunity to be heard. For the same reason Wright v. Lyons, 224 Mass. 167, 112 N. E. 876, is inapplicable to the case at bar. In Roman Catholic Archbishop of Boston v. Board of Appeal, 268 Mass. 416, 167 N. E. 672, the notice required for the benefit of the public at large and affecting the general welfare was not given.

The petitioner cannot object that the commonwealth did not...