Penney v. Com.

• Decision Date: 26 May 1899
• Citation: 173 Mass. 507,53 N.E. 865
• Parties: PENNEY v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 507

53 N.E. 865

PENNEY v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Middlesex.

May 26, 1899

COUNSEL

P.B. Kiernan and Lund & Welch, for petitioner.

J.M Hallowell, Asst. Atty. Gen., for the Commonwealth.

OPINION

MORTON J.

Under St.1889, c. 439, as amended by St.1890, c. 270, the metropolitan sewerage commissioners took an easement in a strip of land belonging to the petitioner, for the purpose of constructing and maintaining a main sewer. In constructing the sewer, they drained the petitioner's premises and wells, thereby causing him to lose his crops and subjecting him to great damage in his business, which was that of a market gardener, and depriving him of the use of the wells for his family and for the purpose of watering his stock. After the sewer was finished, the supply of water returned, and was as before. The petitioner conveyed the premises to one Richard Penney after the taking, excepting from the conveyance the damages occasioned by the diversion of water during the construction of the sewer. Subsequently pursuant to a judgment duly entered upon proceedings instituted by Richard Penney, his representatives were paid in full, without objection by the city, for what is denominated the "easement," though the payment did not include all of the damages. The present petition is by the owner of the premises at the time of the taking. He does not seek to recover for the damages that have already been paid, but limits his claim to those that have not; that is, to the damages occasioned by the diversion of the water. The court ruled that the petition could not be maintained, and directed a verdict for the defendant. The question before us is whether this ruling was right.

The statute under which the commissioners took the easement and constructed the sewer provides that the commonwealth "shall pay all *** damages that shall be sustained by any person or corporation by reason of such taking." St.1890, c. 270, § 1. The commonwealth contends that the taking for which it is liable in damages is limited to the acquisition of a title to the land or easement taken, or, what is the same thing, to the value of the land or easement taken, and that, for any other damages caused by the construction and maintenance of the sewer to the remaining premises, the remedy of the petitioner, if he has any, is by an action at law. But the taking involved not only the acquisition of a title, but the appropriation of the land or easement to the use for which it was taken, and the statute provides that all damages caused by the taking shall be paid for. We do not see, therefore, how the damages to be assessed can be limited only to those arising from the acquisition of a title, or how they can be held to exclude damages to the remaining lands caused by the construction of the sewer. It never has been laid down as a general rule of law, we think, in this commonwealth, that when land, or an easement in it, belonging to the petitioner, has been taken, the damages to which he was entitled should be limited to the value of the land or easement, and did not include damages caused to his remaining premises by the construction of the work for which the land or easement was taken. In Rand v. City of Boston, 164 Mass. 354, 41 N.E. 484, no land of the petitioner or easement therein was taken. In Bacon v. City of Boston, 154 Mass. 100, 28 N.E. 9, the statute was a peculiar one, and provided that the city should "make compensation to the owners for such lands as it shall take under this act," and was held to include only lands actually taken, and in that case no land of the petitioner was taken. In this case the statute provides that all damages sustained by any person or corporation by reason of the taking shall be paid, and land of the petitioner was actually taken. The difference between the two is evident. In Lincoln v. Com., 164 Mass. 368, 41 N.E. 489, which was under the same statute as this petition, the jury were permitted to include in their assessment damages which would be caused to the remaining land by the construction of the sewer. There is nothing in that case to warrant the view that the damages are limited to the value of the land or easement taken. To the same effect is Taft v. Com., 158 Mass. 526, 33 N.E. 1046, in which the same case, under a different name, was before the court. See, further, Butchers' Slaughtering & Melting Ass'n v. Com. (Mass.) 47 N.E. 598, which also was under the same statute, and Dana v. City of Boston, 170 Mass. 593, 49 N.E. 1013. In Sheldon v. Railroad Co., 172 Mass. 180, 51 N.E. 1078, it was held, under the grade-crossing acts (St.1890, c. 428; St.1891, c. 123), which provide for the payment of "all damages sustained by any person in his property by the taking of land," that one whose well had been drained was entitled to recover damages therefor, though his land had not been taken. A fortiori would he have been entitled to recover such damages if a part of his land had been taken.

It is not necessary to consider the cases in which, or the statutes under which, recovery has been allowed for damages to the remaining land, or in which recovery has been allowed for damages when no land was taken. There have been many such cases. The last expression of the views of the court is to be found in Sheldon v. Railroad Co., supra. It never has been the rule in this commonwealth that only such damages can be recovered in cases like this as there would have been a right of action for at common law, and we think that, under the statutes which authorized this...