Rockport Water Co. v. Inhabitants of Rockport

• Decision Date: 15 May 1894
• Citation: 37 N.E. 168,161 Mass. 279
• Parties: ROCKPORT WATER CO. v. INHABITANTS OF TOWN OF ROCKPORT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 279

37 N.E. 168

ROCKPORT WATER CO. v. INHABITANTS OF TOWN OF ROCKPORT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 15, 1894

COUNSEL

Simmons & Pratt, for appellant.

William H. Moody and Sumner D. York, for appellees.

OPINION

HOLMES, J.

This is a bill in equity to enjoin the defendants from preventing the plaintiff's laying down water pipes under its charter. The defendant town has voted unanimously to take the plaintiff's franchise and property, and intends to prevent the plaintiff from going on with its work. It has not paid or tendered any sum of money as the price, and the plaintiff has not stated the amount of its claim.

By section 7 of the plaintiff's charter (St.1893, c. 281) the town has the right to take, by purchase or otherwise, the plaintiff's franchise and corporate property, "on payment to said corporation of the actual cost of its franchise, works," etc. It will be seen that the franchise, by the very terms of its creation, is subject to compulsory purchase, and that there is no question of the constitutionality of a proceeding in accordance with the charter which the plaintiff was content to accept. Water-Supply Co. v. Braintree, 146 Mass 482, 486, 16 N.E. 420. The only question is what the charter requires.

The strength of the plaintiff's argument is that the words quoted make payment a condition precedent to the taking, and that, therefore, until payment, the defendant has no right to intermeddle. Sands v. McClelan, 6 Cow. 582; Paynter v. James, L.R. 2 C.P. 348, 354. But the considerations on the other side seem to us stronger than the effect of the words "on payment."

The word "on" does not always make a condition precedent. Dodd v. Ponsford, 6 C.B. (N.S.) 324; Dana v. Gill, 5 J.J.Marsh. 242-244. As in the Braintree Case, the town has the right to make a binding bargain by its own act alone. As was decided in that case the act which makes the bargain is a two-thirds vote. The time of the vote purports to be the time of the purchase. If the actual cost which the town is required to pay is not to be estimated up to that moment, it is hard to fix any other. By section 7 the interest to be paid is to be reckoned to the date of the purchase or taking, which most naturally would be construed as meaning the date of the vote which makes the binding bargain. If the taking by the town was not complete when the vote was passed, then, in case of a dispute as to what was the actual cost, the town's right to proceed with the works or to use them would be suspended until the cost could be ascertained by a proceeding in court. On the other hand, it is for the plaintiff's advantage to regard...