Sawyer v. Commonwealth

• Citation: 182 Mass. 245,65 N.E. 52
• Parties: SAWYER et al. v. COMMONWEALTH.
• Decision Date: 30 October 1902
• Court: United States State Supreme Judicial Court of Massachusetts

182 Mass. 245

65 N.E. 52

SAWYER et al. v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Worcester.

October 30, 1902

COUNSEL

Thayer &amp Rugg, for petitioners.

Arthur W. De Goosh, Asst. Atty. Gen., for the Commonwealth.

OPINION

HOLMES C.J.

This is a petition for the determination of damages caused by a decrease in value of the petitioners' business, in consequence of the carrying out of the Metropolitan Water Supply act. St. 1895, c. 488, § 14. After the decision in Sawyer v. Board, 178 Mass. 267, 59 N.E 658, the case was referred to a commission upon the present petition, and the petitioners, being dissatisfied with the determination, again claim a trial by jury--this time under section 15 of the act. The material words are as follows: 'Said water board, or any person whose property is taken under the right of eminent domain, or entered upon or injured by the taking of said water, if dissatisfied with any determination of damages made by any commission, may * * * claim a trial by jury,' &c. The question is whether the petitioners come within these words, and have the right which they claim.

A majority of the court is of opinion that the petitioners are not entitled to a jury. If indeed the loss which they have suffered were within the protection of the Constitution there would be the strongest reason for construing the statute as giving them whatever rights the Constitution secures (compare Salem Turnpike & C. Bridge Corp. v. Essex Co., 100 Mass. 282, 286, 287; Gen. St. c. 48, commissioners' note; Bauman v. Ross, 167 U.S. 548, 593, 17 S.Ct. 966, 42 L.Ed. 270; Lewis, Em. Dom. [2d Ed.] § 311), but it hardly would be contended that the Constitution is concerned. It generally has been assumed, we think, that injury to a business is not an appropriation of property which must be paid for. There are many serious pecuniary injuries which may be inflicted without compensation. It would be impracticable to forbid all laws which might result in such damage, unless they provided a quid pro quo. No doubt a business may be property in a broad sense of the word, and property of great value. It may be assumed for the purposes of this case that there might be such a taking of it as required compensation. But a business is less tangible in nature and more uncertain in its vicissitudes than the rights which the Constitution undertakes absolutely to protect. It seems to us, in like manner, that the diminution of its value is a vaguer injury than the taking or appropriation with which the Constitution deals. A business might be destroyed by the construction of a more popular street into which travel was diverted, as well as by competition, but there would be as little claim in the one case as in the other. See Smith v. City of Boston, 7 Cush. 254; Stanwood v. Malden, 157 Mass. 17, 31 N.E. 702, 16 L. R. A. 591. It seems to us that the case stands no differently when the business is destroyed by taking the land on which it was carried on, except so far as it may have enhanced the value of the land. See Railroad Co. v. Blacker, 178 Mass. 386, 390, 59 N.E. 1020.

We believe that what we have said is in accord with the general understanding of the profession, although the cases sometimes cited for the proposition may not have gone far enough to decide it. Whitman v. Railroad, 3 Allen, 133, 142; Edmands v. City of Boston, 108 Mass. 535, 549; Cobb v. Same, 109 Mass. 438, 444; Maynard v. City of Northampton, 157 Mass. 218, 31 N.E. 1062; Williams v. Com., 168 Mass. 364, 366, 47 N.E. 115; Railroad Co. v. Blacker, 178 Mass. 386, 392, 59 N.E. 1020. See Stadler v. City of Milwaukee, 34 Wis. 98; Coster v. Mayor, etc., 43 N.Y. 399; In re Mt. Washington Road Co., 35 N.E. 134, 147; Moses v. Sanford, 11 Lea, 731; Fuller v. Edings, 11 Rich. Law, 239; Eddings v. Seabrook, 12 Rich. Law, 504; Ricket v. Railway Co., L. R. 2 H. L. 175; Board v. McCarthy, L. R. 7 H. L. 243; Lewis, Em. Dom. (2d Ed.) §§ 147, 487. See, also, Butchers' Slaughtering & Melting Ass'n v. Com., 169 Mass. 103, 118, 47 N.E. 599.

Assuming that the petitioners have no right under the Constitution, we have only to construe the statute in a natural way. The words which we have cited seem to us inapt to give the right which the petitioners claim.

Their business is not 'taken under the right of eminent domain,' or alleged to be. It could not be 'entered upon.' It is not 'injured by the taking of said water.' Its value is decreased by the carrying out of the act,--that is, we presume, by the occupation of the land where it was carried on and the adjoining land where customers dwelt,--matters quite different from those mentioned. Their business is not 'property' within the meaning of the act, unless it be held that the statute gives it the character of property by providing compensation and thereupon in section 15 uses the word in a looser and broader sense than that in which it had used it before. In sections 12, 13, 'property' seems to be used with what may be called its constitutional meaning, as was intimated in Sawyer v. Board, 178 Mass. 267, 270, 59 N.E. 658. Moreover we may notice for what it is worth that the remedy given to the petitioners by section 14 is to have their damages determined in the manner 'hereinbefore' provided. That which they claim is provided thereinafter in section 15. It seems to us that the provision relied upon plainly corresponds to the first part of section 14 and has nothing to do with the petitioners, who come in by an afterclap at the end of the...