Old Colony R. Co. v. Framingham Water Co.

• Decision Date: 19 May 1891
• Citation: 27 N.E. 662,153 Mass. 561
• Parties: OLD COLONY R. CO. v. FRAMINGHAM WATER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 561

27 N.E. 662

OLD COLONY R. CO. v. FRAMINGHAM WATER CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1891

COUNSEL

J.H. Benton, Jr., for plaintiff.

J.G Abbott and S.A. Phillips, for defendant.

OPINION

KNOWLTON J.

We will assume in favor of the plaintiff, without deciding, that the land taken by the defendant had been appropriated by the plaintiff to a public use, and that the plaintiff's right to it was in all respects as beneficial, in reference to a subsequent exercise by the legislature of the right of eminent domain over it, as if it had originally been taken by the railroad company under authority of the statute. There can be no doubt that the legislature may take, or authorize a corporation to take, land for a public use, which has previously been appropriated by legislative authority to a different public use. Boston Water-Power Co. v. Boston etc., R. Co., 23 Pick. 360; Charles River Bridge v Warren Bridge, 11 Pet. 577; Cary Library v Bliss, 151 Mass. 364, 379, 25 N.E. 92. But it will not be deemed to have done so unless its intention so to take such land is plainly manifested in the statute. Housatonic R. Co. v. Lee, etc., R. Co., 118 Mass. 391; Providence, etc., R. Co. v. Norwich, etc., R. Co., 138 Mass. 277; In re City of Buffalo, 68 N.Y. 167; People v. Thompson, 98 N.Y. 6; New Jersey, etc., R. Co. v. Long Branch Commissioners, 39 N.J.Law, 28. We are therefore brought directly to the question on which the decision of this case must turn,--whether, by St.1884, c. 271, the legislature intended to authorize a taking of land on the border of Farm pond, which had already been properly procured for a public use by the plaintiff corporation. Section 2 of this chapter provides, among other things, that "the defendant corporation shall have all the rights which belong to the town of Framingham and the inhabitants thereof *** to take, use, and hold of the waters of Farm pond and Sudbury river *** so much as may be necessary for the purposes specified in section one, *** and may also take and hold by purchase or otherwise all necessary lands for raising, diverting, flowing, and holding said waters, and securing and preserving the purity of the same, and such other lands in the town of Framingham as may be necessary to construct and maintain one or more storage and distributing reservoirs, and may do many other specified things; and in general may do any other acts and things necessary, convenient, or proper for carrying out the purposes of this act." The legislature must be presumed to have been familiar with the situation and use of the lands about Farm pond. At the time of the passage of the statute referred to the waters of the pond had been taken by the city of Boston for a public use, and the entire shore of the pond had been purchased or taken and was then held for a public use, either by the city of Boston, or by the plaintiff corporation, or by the Boston & Albany Railroad Company, except a small portion, which was owned by the last-mentioned company, and which was not suitable to defendant's pumping station. Nothing is expressly stated in the statute in regard to taking property which was then held for a public use, but the right to do this was necessarily involved. The water of the pond could be taken only by diverting it from the city of Boston, which was then drawing it for the use of its inhabitants. No suitable place for a pumping station or a filtering gallery could be taken on the shore of the pond without taking it from a corporation which was then holding it for a public purpose. Doubtless it would have been possible for the defendant to erect its pumping station at a distance from the pond, and to draw the water out through a conduit, but even then it would have been necessary to construct the conduit across land which was held for a public use, and it would have been difficult and expensive so to construct the works, and very difficult, if not impossible, to provide a filtering...