Selectmen of Town of Danvers v. Com.

• Decision Date: 06 January 1904
• Parties: SELECTMEN OF TOWN OF DANVERS v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 502

69 N.E. 320

SELECTMEN OF TOWN OF DANVERS v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Essex.

January 6, 1904

COUNSEL

Daniel N. Crowley, for petitioners.

Herbert Parker, Atty. Gen., and Wm. B. Sullivan, for respondent.

OPINION

LORING J.

By chapter 564, p. 723, of the Acts for the year 1898, it was provided that if the town of Danvers and the trustees of the Danvers Lunatic Hospital failed to agree as to the amount of compensation to be paid by the commonwealth for water supplied by said town to the hospital in pursuance of a contract between the commonwealth and the town, dated June 23, 1876, the Supreme Judicial Court, on application of either party, should appoint three commissioners to determine the sum to be paid for such water each year from December 1 1896, to December 1, 1899. It further provided that 'the award of said commissioners or a majority thereof shall be returned into said court * * * and when accepted by said court shall be final and conclusive for such term of years.' The commonwealth and the town having failed to agree, commissioners were appointed, who have made an award which is now before this court on a report made by a single justice.

At the hearing before the commissioners 11 requests for rulings were made by the town, and 23 were made by the commonwealth. It is stated in the award that exceptions 'were duly saved' to the refusal to give the rulings requested and to the rulings given. In this court a motion was made by the commonwealth to recommit the award, with instructions to find in accordance with the rulings requested by it and a motion was made by the town for a modification of the award, and when modified for confirmation of it, and for the 'cost of the reference.' We are at a loss to understand on what the commissioners were proceeding when they undertook to save exceptions to their rulings. They seem to have assumed that they were acting as masters in chancery. But if they were, they could not save exceptions to rulings of law. See O'Brien v. Keefe, 175 Mass. 274, 56 N.E. 588, where the proceeding before masters is explained. But they were referees, and not masters in chancery, and the only questions of law open on an award made by referees are those referred by them to the court. Fairchild v. Adams, 11 Cush. 549; Gillis v. Cobe, 177 Mass. 584, 59 N.E. 455. A full statement in the award of the principles of law on which the referees proceeded is not enough to submit to the court the correctness of those principles of law and of their application to the case. Unless it can be held as matter of construction of the award that the correctness of the law has been submitted by the referees to this court, the statement of law in the award will be taken to be a statement of what the referees have found, made for the information of the parties, and not a reference of the correctness of it to this court. Ellicott v. Coffin, 106 Mass. 365; Carter v. Carter, 109 Mass. 309; Rogers v. Mayer, 151 Mass. 280, 23 N.E. 836. See, also, Smith v. Boston & Maine Railroad, 16 Gray, 524. In view of the misapprehension of the parties as to what was before the court, we have had some doubts as to whether the award should not be recommitted. But, on a full consideration of the whole case, we do not think it clear that there has been such a mistrial as to make that necessary in justice to the parties.

It appears from the commissioners' award that in October, 1873, Hathorne Hill, in Danvers, was purchased by commissioners as the site of the Danvers Lunatic Hospital. For the four years preceding, the town of Danvers had been considering the establishment of a town system of waterworks. In March, 1874, a committee appointed by the town reported in favor of taking mater from Middleton Pond in the town of Middleton, with a reservoir on Wills Hill. Wills Hill is in Middleton, immediately adjoining the pond. In the same year the Legislature gave the town a right to take the waters of this pond for a water supply. St. 1874, p. 122, c. 191. In the spring of 1875 'the commissioners for the insane hospital proposed to the committee of the town that the town should build its works in connection with the hospital, and thereby save an expense to both parties, proposing to give the town the right to build the reservoir on the hospital grounds, the use of all material for the same, and including the right to lay the necessary pipes for a sum then specified.' This was not accepted by the town. In May, June, and July, 1875, several meetings of the town were held to see if the town would vote to construct a system of waterworks, under the act, for a cost not exceeding $200,000, but the scheme was not adopted by the town. On April 28, 1876, the Legislature authorized the commissioners to contract with the town for a permanent supply of water for the lunatic hospital, and also gave them leave to take water from the same pond as a water supply for the hospital. St. 1876, p. 219, c. 224. After some negotiations between the town and the commissioners, the town passed a vote on May 8, 1876, authorizing its water commissioners to make a contract with some person for the construction of waterworks at and from Swan and Middleton ponds, and to contract with the commissioners of the lunatic hospital in reference to a supply of water to the hospital, 'provided that the substantial effect of said contracts taken together shall be that the cost to the town of said works shall not exceed one hundred and fifty thousand dollars, * * * said works * * * to include * * * a reservoir to be placed on Hathorne Hill in Danvers in place of Wills Hill in Middleton.' In pursuance of that vote, a contract was made between the town and the commissioners of the lunatic hospital on June 23, 1876, which is the contract under which the water now in question was furnished. The provisions of that contract are as follows: First. The state agreed to construct and fully complete a reservoir at its sole expense, with a minimum capacity of five million gallons, located near the hospital, 'which reservoir shall be perpetually kept by the state, at its sole expense in a perfect and pure condition.' Second. The town was 'to have the perpetual right' to use the reservoir 'as a storage basin for a supply of water to said town, and to such other places as the town may hereafter desire,' with a right to lay pipes through the grounds of the hospital as part of the system of waterworks of the town. Third. The town agreed by December 1, 1896, to 'complete and thenceforth forever maintain its proposed waterworks between the sources of supply and reservoir and perpetually thereafter keep a constant and ample supply of water in the reservoir, and permit the state to take therefrom, in any manner and at any time, all the water which the state through any of its authorized agents may desire or deem proper for the use of the hospital, and of all buildings that at any time may be owned by the state on the grounds, and also for use on the grounds themselves, as now laid out, for any purposes whatever. The state may at any time, at its own expense for pipes, take water for any purposes before named directly from the pipes to be laid by the town.' Fourth. 'Upon the introduction of the water to the reservoir by the town' as agreed, 'the state shall pay to the town of Danvers the sum of $12,500, and from such time annually thereafter for the term of 20 years, shall pay to the town the sum of $1,000 as full compensation for the future supply of water for the hospital and other buildings and grounds.' Fifth. 'At the expiration of said twenty years the state and town shall by mutual agreement fix upon the annual water rates thereafter to be paid by the state.' The town immediately made a contract with one George H. Norman, by which the waterworks were to be constructed for the sum of $162,500, and the commissioners erected a reservoir on Hathorne Hill at a cost of $37,500 or thereabouts. Upon the introduction of the water into the reservoir, the commissioners paid the town the $12,500. The 20 years during which the water rates were fixed by the contract expired on December 1, 1896, and the commissioners, in their award which is now before us, have fixed the rates for the three years next succeeding.

The question to be decided by the commissioners was almost entirely, if not entirely, a question of fact. The case which they had to deal with was what was reasonably due for the services performed by the town in putting water into the reservoir on Hathorne Hill, for the use of the commonwealth under the contract of June 23, 1876. By the contract the water was to be put in the reservoir by the town, and the town was to be paid for doing so. But the parties did not agree upon the price, nor did they state in their contract what basis should be adopted for fixing the price. Stripped of detail, the case was one where the town had furnished the commonwealth with something of value to be paid for by the commonwealth, but without an agreement as to the amount to be...