Roberts v. City of Cambridge

• Decision Date: 28 June 1895
• Citation: 41 N.E. 230,164 Mass. 176
• Parties: ROBERTS v. INHABITANTS OF CITY OF CAMBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 176

41 N.E. 230

ROBERTS v. INHABITANTS OF CITY OF CAMBRIDGE.

Supreme Judicial Court of Massachusetts, Suffolk.

June 28, 1895

COUNSEL

Bumpus, Trask, Simes & Adams, for plaintiff.

G.A.A Pevey, for defendant.

OPINION

HOLMES J.

This is a bill for the specific performance of an alleged contract. The material facts are as follows: The defendant had taken the water of Stony brook under St.1884, c. 256, subject to prior rights given to other towns. See St.1884, c. 257. Before the damages were assessed, the defendant's water board passed the following votes, which were communicated to the plaintiff, and assented to by him.

"Voted that on December 19, 1887, we will open the four-inch gate at the gatehouse of our dam at Stony brook, and allow thereafter a quantity of water to pass through from the reservoir above the dam to Roberts' Mill, sufficient for washing and steam purposes, to take the place of the water heretofore furnished to him by us for such purposes.

"Voted, that the president be instructed to write to Mr. William Roberts informing him of the action of the board, and furnish him an attested copy of the foregoing votes."

At the hearing before the commissioners on the amount of damages to be paid to the plaintiff by the defendant, these votes were put in evidence, were relied on by the counsel for the defendant, were treated by the commissioners as an agreement by the city, and led the commissioners to eliminate the plaintiff's claim for damages in respect of water for washing or steam purposes, with the result of lessening the amount of the commissioners' award. The city paid the award, and for a time supplied the plaintiff with water as agreed. Since then, however, it has neglected and refused to fulfill the contract, to the great inconvenience and expense of the plaintiff.

The defendant objected to evidence of the foregoing facts, but, as it does not appear how they were proved, it is to be assumed that they were proved by proper evidence, if the facts, however proved, were competent. There is no question before us of inquiries addressed to a commissioner as to the ground of his decision.

It is objected that no evidence was admissible of the facts, because the commissioners were to assess all the damages suffered by the plaintiff. But, if there was a binding contract to give the plaintiff a part of the water embraced in the taking, such a contract would have the same effect as a valid exception of the same amount of water from the original taking, and would cut down the damages accordingly. See Ex parte Morse, 18 Pick. 443, 447; Railroad Co. v. Miller, 125 Mass. 1, 5; Bicknell v. Railroad Co., 161 Mass. 428, 37 N.E. 378; Huston v. Railroad Co., 21 Ohio St. 235; Mills, Em.Dom. (2d Ed.) §§ 112, 113.

It is found as a fact in the report that the transaction amounted to a contract,--a finding warranted by the evidence. The accepted vote purported to be a contract. By the statute and the city ordinance, the water board had all the powers of the city under the act. St.1884, c. 256, § 10; Cambridge...