Suburban Land Co. v. Town of Billerica
| Decision Date | 28 June 1943 |
| Citation | 49 N.E.2d 1012,314 Mass. 184 |
| Parties | SUBURBAN LAND COMPANY, INC. v. TOWN OF BILLERICA (and a companion case [1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 8, 1942.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, & RONAN, JJ.
Deed, Construction. Real Property, Boundary, Easement, Trespass. Way, Private ownership of soil; Public: establishment. Equity Jurisdiction, Retention for assessment of damages, Laches Trespass, Infringement of easement. Laches. Municipal Corporations, Town meeting. Trespass. Easement. Equity Pleading and Practice, Injunction.
Conveyances by a land development company of lots by descriptions merely stating the numbers of the lots on a recorded plan showing bordering the lots, private ways in which the company maintained water pipes which were a part of a water system operated by it, did not pass to the several grantees the fee in any part of the ways and did not preclude a subsequent deed by the company of its water system and of easements in the ways for maintenance of the pipes.
A suit in equity to enjoin a town from entering upon certain private ways to install a water system in alleged derogation of rights of the plaintiff therein should not have been dismissed but should have been retained for assessment of damages where it appeared that at the time the suit was begun the town was a trespasser as against the plaintiff although afterwards, before trial, its rights in the ways properly were established by eminent domain proceedings.
Laches on the part of one seeking in a suit in equity to enjoin a continuing trespass by a town upon his right to maintain pipes in a private way was not shown where it appeared that shortly after the trespass began he wrote the selectmen directing attention to his rights and suggesting a conference but disclaiming any waiver, that three months later a town official informed him that the way was undergoing construction, advised him of steps to protect his pipes and assured him of cooperation, and that he began the suit fifteen months later. The fair implication of the record of a town clerk, "Article voted in the
Affirmative," as the action of a town meeting upon an article in the warrant, "To see if the Town will accept the laying out of" stated streets, "or portions thereof, as town ways in accordance with the report of the Selectmen; or act in relation thereto," was that the town voted to accept the layout in accordance with the selectmen's report.
Facts agreed upon showed that the procedure of the selectmen of a town respecting the layout of a town way, both before and after a town meeting at which the layout was accepted, was in compliance with the applicable provisions of G. L. (Ter. Ed.) cc. 82, 79, and that the voters were sufficiently apprised of the layout by the filing thereof in the office of the town clerk, as required, before the town meeting.
In a suit in equity to enjoin a town from trespassing on the plaintiff's rights by laying water pipes in a private way, where it appeared that residents on that way had requested the defendant to provide them with water service, an injunction should issue commanding the defendant to remove its pipes within five months unless previously it should have acquired the legal right to maintain them.
BILL IN EQUITY, filed in the Superior Court on November 7, 1939. The case was heard by Burns, J.
J. C. Johnston, for the plaintiffs. W. S. Kenney, for the defendant.
These are two bills in equity in which the plaintiffs seek to enjoin the defendant town from entering upon certain lands for the purpose of installing water mains and other equipment for the distribution of water to the owners or occupants of houses in the so called Nuttings Lake subdivision. The cases were heard on the pleadings and a statement of agreed facts, applicable to each case, and now come before us on the appeals of the respective plaintiffs from the decrees entered by the judge dismissing the bills. In a so called "Report of Material Facts" the judge states that all the material facts were set forth in the statement of agreed facts, and that he drew no inferences that would establish any additional or different facts.
The material facts may be summed up as follows: In 1913 the plaintiff Suburban Land Company, Inc., a Massachusetts corporation, hereinafter called the land company, acquired a large tract of land surrounding Nuttings Lake in the defendant town. The land company caused the tract to be surveyed, and divided into lots located on streets laid out and improved as indicated on plans filed in the Middlesex north district registry of deeds. It built a water system consisting of reservoirs, wells, pumps, tanks, and pipes in the streets of the development, and until 1924 supplied water to occupants of lots thereon. The land company continued to supply water to the occupants of lots
On May 23, 1935, the land company foreclosed a mortgage given to it by the Nuttings Lake Water Company, Inc., and the plaintiff Flower acquired at the foreclosure sale all the rights, title and interest of the water company and has since carried on the water business in his own name. At various times from 1913 until September 17, 1924, the land company conveyed to individual owners a large number of lots, including many on Marshall Street, Burtt Road, Cherry Road, Pine Road and Lake Street, which are the streets involved in this litigation. "Title to these lots has never at any time revested in the . . . land company." The lots were conveyed by lot number only, the deeds containing merely a reference to the recorded plans, without further description of the land conveyed. The land company has retained title to other lots along the streets in question.
After the conveyance to Flower by the foreclosure deed dated June 19, 1935, he entered into a contract with the defendant town for the purchase of water, "and until the present time has been purchasing from said town the water that he has distributed through said system" to summer residents. In 1938, in pursuance of a vote at the annual town meeting, the town entered upon Lake Street and proceeded to lay down pipes to connect with its own water system, the work taking nearly two years. Upon completion of the work the town served many residents on Lake Street who were formerly customers of Flower. On April 15, 1938, Flower wrote to the chairman of the board of selectmen advising them that the town's actions were in derogation of Flower's exclusive rights, inquiring what action, if any, the town had taken under its right of eminent domain, and proposing a meeting with the selectmen to discuss the problem. In this letter Flower specifically disclaimed any waiver of legal rights. In reply he received a letter dated July 30, 1938, from the foreman of highways, stating that the W. P. A. was doing construction on all of Lake Street, advising Flower what steps to take to protect his water pipes, and stating that the town "will endeavor to co-operate with you at all times."
Pursuant to a vote of the town in 1935 to accept Marshall Street, which it is admitted was not in accordance with legal requirements, the defendant town in 1939, just before these suits were commenced, entered upon Marshall Street and began to lay water pipes in this street as well as in Burtt Road, Cherry Road, and Pine Road. This work ceased temporarily upon the bringing of these proceedings, by mutual agreement. The town then took steps to accept the portions of the above streets involved, in accordance with the applicable sections of G. L. (Ter. Ed.) c. 79 and c. 82. The procedure followed is set forth in the statement of agreed facts and will be referred to hereinafter.
The annual town meeting of Billerica was held on February 10, 1940, in accordance with a warrant previously served as required by law, which contained the following: The clerk's record of the action taken at the town meeting is as follows: "Article voted in the Affirmative."
The order of taking thereafter adopted by the board of selectmen declared that the town took an easement for highway purposes in the above mentioned streets, particularly describing the portions so taken, and reserved to the owners of the lands involved all rights not inconsistent with the easements taken. The order further recited that no damages were awarded to anyone except $1 to the land company.
Many of the property owners on the streets involved are all year residents and have petitioned the selectmen to provide them with water during the entire year because the plaintiff Flower furnishes water during the summer months only. Seventy-seven former customers of Flower are now taking water from the town. It is agreed that the defendant never took any action legally to acquire Lake Street. It is agreed that "if the question of damage arises under these pleadings the parties will submit oral evidence thereon when liability is...
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