Newburyport Water Co. v. City of Newburyport

• Decision Date: 14 June 1897
• Citation: 47 N.E. 533,168 Mass. 541
• Parties: NEWBURYPORT WATER CO. v. CITY OF NEWBURYPORT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 541

47 N.E. 533

NEWBURYPORT WATER CO. v. CITY OF NEWBURYPORT.

Supreme Judicial Court of Massachusetts, Essex.

June 14, 1897

COUNSEL

Robert M. Morse, Forrest L. Evans, and John Duff, for petitioner.

A.E Pillsbury, C.C. Dame, and R.E. Burke, for respondent.

OPINION

HOLMES J.

The price to be paid by the city of Newburyport to the Newburyport Water Company for what it purchases under St.1894, c. 474, is not left to the discretion of the commissioners. A rule is given to them by the statute, and it is not improper that the manner in which that rule has been interpreted and carried out should be reported for the supervision of this court before the acceptance of their report. Kingman, Petitioner, 153 Mass. 566, 579, 27 N.E. 778. We are not disposed to criticise even the reporting of questions of evidence by agreement of parties, so far as it may seem possible that they had a substantial bearing upon the result. But we should not recommit the report upon a matter of evidence, unless we could see some probability of an appreciable change in the report upon the correction of the mistake.

The chief complaint of the petitioner is that no allowance is made for its right to lay and maintain pipes in the streets and its right to collect water rates. There was much discussion whether these are among the "rights" which the city buys under section 1 of the act, and, if so, whether they are embraced in the provision that the value of the property shall be estimated without enhancement on account of, among other things, the franchise of the company. As bearing upon this, there was a good deal of argument as to whether St.1893, c. 471, was in force; the city having voted not to purchase the petitioner's property as therein provided, but afterwards having voted to accept the act. We do not think it necessary to go into these considerations, or even to examine with great accuracy how far the rights in question have not been allowed for. The direction to "determine the fair value of said property for the purposes of its use by said city" is clear enough, without going into controverted questions. Whatever the city purported to purchase (see Abbott v. Railroad Co., 145 Mass. 450, 453, 15 N.E. 91; State v. Sherman, 22 Ohio St. 411, 428; Coe v. Railroad Co., 10 Ohio St. 372, 387), the petitioner's right to lay pipes in the streets was of no use to the city. The city had that right by virtue of the legislative authority to furnish water. Water pipes are not an additional burden to the highway. Pierce v. Drew, 136 Mass. 75, 81; Lincoln v. Com., 164 Mass. 1, 10, 41 N.E. 112. And, as soon as the city was authorized by the legislature to furnish water, no one could complain if it proceeded to lay pipes for that purpose. Assuming that the act of 1893 was not in force, and admitting that a purchase from the petitioner was a condition precedent to the exercise of any rights under the act of 1894, still it is plain that, when once the purchase was made, the act of 1894 conferred upon the city directly, and not merely or at all as successor to the water company, the right to supply itself and its inhabitants with water as if under the act of 1893, in case the water company had not offered to sell under that act. A similar answer may be made with regard to the right to charge water rates. St.1894, c. 474, §§ 2, 4; St.1893, c. 471, §§ 1-3, 8, 13. "It is the statute, and not the company which originally constructed the [waterworks], which confers upon the local authority this right." Edinburgh Street-Tramway Co. v. Edinburgh [1894] App.Cas. 456, 464, 465.

It must be remembered that the transaction before us springs out of a voluntary offer by the petitioner to sell upon the statutory terms, and therefore there is no reason to try to bend those terms in its favor. Of course, an offer by a water company, made under the threat of municipal competition and to avoid ruin, might be voluntary only in name. But we have no reason to assume in this case that the petitioner is the victim of robbery, and must treat it as having acted of its free choice in fact as well as in form.

The other objection most insisted upon by the petitioner is the exclusion of evidence of its net earnings in the past. Had the evidence been admitted, it is improbable that we should have recommitted the report on that ground. We are not disposed to recommit it because the evidence was excluded. The net income, no doubt, would be an indirect way at getting at the value of the capital in a transaction between individuals. It is not necessary to say that it would throw no light on the different questions which the commissioners had to answer under the statute. But the question was a different one. Their duty was to find the fair value of the property for the purposes of its use by the city, and they were to find it without enhancement on account of future earning capacity or good will, or on account of the franchise of the company. It is doubtful whether the evidence would not be held inadmissible in England, as an attempt to get an allowance for "future earning capacity," although the way in which these words are used in St.1891, c. 370, § 12, points to a narrow construction of them in the act before us. Edinburgh Street-Tramway Co. v. Edinburgh [1894] App.Cas. 456, 466. In this country it has been said that basing the value upon earnings is, in effect, valuing a franchise which no longer...