Sullivan v. Com.

• Decision Date: 01 April 1957
• Citation: 335 Mass. 619,142 N.E.2d 347
• Parties: T. Gregory SULLIVAN and another v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 347

142 N.E.2d 347

335 Mass. 619

T. Gregory SULLIVAN and another v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 7, 1957.

Decided April 1, 1957.

James F. Sullivan, Boston, for plaintiffs.

George Fingold, Atty. Gen., and David L. Winer, Asst. Atty. Gen., for Commonwealth.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

WHITTEMORE, Justice.

These are the petitioners' exceptions to the direction of a verdict for the Commonwealth on the trial of their petition for the assessment of damages under G.L. (Ter.Ed.) c. 79 for injuries caused to the house owned by them at 320 Chestnut Street, Newton, by rock blasting in the course of the construction of an aqueduct to improve the distribution of water to the metropolitan water district.

There was evidence from which the jury could have found that the blasting over a period of weeks or months between April, 1948, and August, 1949, caused serious injury to the petitioners' house including cracked plaster and the breaking of a pipe in the attic when the petitioners were away for several days with consequent extensive water damage, and that the injury was caused by vibrations transmitted from the area of the blasts through the stratum of solid and rigid rock which underlay the petitioners' house and in which the acqueduct, at some distance from the petitioners' house, was being constructed; and also that the vibrations in the rock caused repeated vibrations in the house and in the pipe which extended up through the house to the attic, and eventually caused the pipe to sustain 'elastic fatigue' and snap. It was undisputed that the work was done by independent contractors and that blasting was necessary to construct the tunnel. There was no evidence of use of more explosives than was required or would be permitted under any standards which might have been shown to be applicable. The only express testimony as to due care was that 'the blasting at all times was performed in a careful and approved manner.'

We have discovered no statutory authority express or implied for recovery under c. 79 for injury caused by this particular public work to property not taken. And the facts, in their aspect most favorable to the petitioners, do not show that property of the petitioners has been 'appropriated to public uses' so that they are assured 'reasonable compensation therefor' by Massachusetts Constitution, Declaration of Rights, art. 10. Therefore, for reasons hereinafter stated, the petitioners have no remedy under c. 79. We discuss first the absence of a statutory provision for damages.

1. Since the decision of Callender v. Marsh, 1 Pick. 418, '* * * it has been the almost invariable practice for the Legislature, whenever it authorizes the infliction of damage to private property by a public improvement, to provide that the owner amy recover the amount of such damage by petition to the Superior Court * * *.' 1 Preliminary Report of the Commissioners to Consolidate and Arrange the General Laws (1918) 20. That practice, however, was not followed in respect of the statute under which the subject aqueduct was built.

The authorizing statute is St.1938, c. 460, as amended by St.1946, c. 515, in respects not now material. It provides in § 2 that the metropolitan district water supply commission acting for the Commonwealth may take land and rights by eminent domain and in § 3 that 'Any taking under this act may be in fee or otherwise, perpetual in duration or for a limited period of time, according as the commission shall determine and set forth in the order of taking. All takings under this act and all proceedings in relation to or growing out of the same shall conform to chapter seventy-nine of the General Laws except in the following particulars: (a) The commission need make no award of damages sustained by persons or corporations in their property by any such taking. (b) The notice required by section eight of said chapter may be given at any time within one year after the recording of the order of taking as provided in section three of said chapter. (c) Petitions for the assessment of damages under section fourteen of said chapter may be filed within two years after the recording of the order of taking provided for in section three of said chapter. So much of section 16 of said chapter seventy-nine as amended, as appears after the word 'vested', in the third line, shall have no application to takings under this act.' There is no express provision in respect of damages for injury to land not taken. We think that this reference to c. 79 is to be interpreted broadly in view of the 'almost invariable practice' of the Legislature. But the authorizing words limit the application of c. 79 to 'All takings under this act and all proceedings in relation to or growing out of the same * * *' (emphasis supplied). This petition is not in relation to, nor does it grow out of, a taking. It is in relation to and grows out of construction operations authorized by the statute in all lands through which the project might pass, whether owned by, granted to or taken by the Commonwealth. We therefore can find no implication in the reference to c. 79 of [335 Mass. 623] an intention to authorize the recovery of damages for injuries to land not taken.

The authorizing statute refers to other statutes which provide for earlier related construction but the provisions therein for recovery of damages are not broad enough to cover claims arising under this statute. See St.1938, c. 460, § 1; St.1926, c. 375; St.1927, c. 321; Connor v. Metropolitan District Water Supply Commission, 314 Mass. 33, 49 N.E.2d 593; Beaman v. Commonwealth, 304 Mass. 443, 24 N.E.2d 7.

We have discovered no general authority for the recovery of damages such as are here claimed in the statutes relating to the metropolitan district commission or predecessor boards. ¹ General Laws (Ter.Ed.) c. 92, § 32, contains the only current general provision for recovery of damages. This section, after providing that 'the [metropolitan district] commission in constructing, maintaining and operating the water and sewerage systems, water supply and sewage disposal may' do various things, provides only that 'Any person injured in his property by the entry upon or use of his land by the commission under this section may recover his damages under chapter seventy-nine.'

The right to recover damages for injury to land not taken is not given expressly or by necessary implication in c. 79. The petitioners claim under § 9 which provides that 'When injury has been caused to the real estate of any person by the establishment, construction * * * [and so forth] of a public improvement which does not involve the taking of private property, and he is entitled to compensation by law for such injury, if such establishment, construction * * * [and so forth] was effected by or in accordance with a formal vote or order * * * the damages shall be awarded, determined and collected and notice of the order shall be given in the same manner as if there had been a taking * * * under section one.' We do not pause to determine whether the injury here was caused by construction which was effected by or in accordance with a formal vote or order. The commissioners in reporting this section (Preliminary Report, ibid., 20), after stating, as quoted above, the almost invariable practice to provide for such damages, said 'this section is intended to provide a procedure for such cases. It does not in itself create a liability for damages, but leaves that to the statute authorizing the particular injury.'

If reference is had to § 10 ², see United States Gypsum Co. v. Mystic River Bridge Authority, 329 Mass. 130, 141-142, 106 N.E.2d 677, there is no more reason than in the case of § 9 to construe that the section itself gives a right to recover damages. The commissioners (ibid., 21) said as to § 10, 'This section is intended to provide a remedy when there has been a taking, or an injury for which the owner is entitled to compensation, and there is no formal record which determines the extent of the taking or injury and by which the amount of the damages can be gauged, and the time when they become payable fixed.'

Our attention has been directed to no decision of this court, and we have found none, which holds that the provisions of c. 79 or like provisions import a right to damages. ³ In Wine v. Commonwealth, 301 Mass. 451, 17 N.E.2d 545, 120 A.L.R. 889, the statute, St.1932, c. 241, § 3, provided that 'The cost of constructing said bridge and land takings for the same, including any damages awarded or paid on account of any taking of land or property therefor, or any injury to the same, * * * shall not exceed, in the aggregate * * * [a stated sum]' and shall be paid from the highway fund. The court, 301 Mass. at page 458, 17 N.E.2d at page 548, said that 'under similar statutes' special and peculiar, direct and proximate damages could be recovered, and cited cases under express statutory authorizations. In Wyman v. Boston, 282 Mass. 204, at page 207, 187 N.E. 462, at page 463, there was express statutory provision (St.1923, c. 480, § 8) and the statement that 'the section refers to G.L. c. 79 as the measure of their rights as well as the means of enforcing them' of course does not mean that c. 79 is the source of the rights. In Nichols v. Commonwealth, 331 Mass. 581, 584, 121 N.E.2d 56, 57, the taking was pursuant to c. 81, § 7C, which made express provision for the recovery of 'damages under chapter seventy-nine for the taking of or injury to * * * easements of access * * *' and the reference in the opinion to c. 79, § 12, states the kinds of damages recoverable under the right given in c. 81. Section 12 defines the 'Measure of damages' in stated cases but does not purport to create a right thereto. The instant case does not present for construction a statute authorizing by any reasonable implication the...