Tilton v. City of Haverhill

• Decision Date: 28 May 1942
• Citation: 311 Mass. 572,42 N.E.2d 588
• Parties: TILTON et al. v. CITY OF HAVERHILL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 572

42 N.E.2d 588

TILTON et al.

v.CITY OF HAVERHILL.

Supreme Judicial Court of Massachusetts, Essex.

May 28, 1942.

Report from Superior Court, Essex County; Williams, Judge.

Petition by Charles L. Tilton and others against the City of Haverhill for assessment of damages to the petitioners' premises cause by the construction of a seawall. On report from the superior court.

Judgment for respondent.

Before FIELD, C. J., and DONAHUE, LUMMUS, and DOLAN, JJ.

S. Parsons, of Lynn, for plaintiffs.

W. C. McDonald, City Sol., and W. S. Soroka, Asst. City Sol., both of Haverhill, for defendant.

DOLAN, Justice.

This is a petition for assessment of damages to the petitioners' premises, caused by the construction of a sea-wall under authorization of St.1937, c. 405. The case was heard upon the report of an auditor and other evidence. The judge found for the respondent, stating that he based his ruling that the petitioners could not recover and his finding for the respondent ‘entirely on the auditor's report,’ and reported the case for determination by this court.

The report of the judge sets forth that it presents only the following questions of law: ‘1. Does the failure of John C. Tilton to record his license within one year preclude the * * * [petitioners] from recovering in this action? 2. Was the correct measure of damages the cost of repairing or replacing the damaged building, or is the diminution in value of the building due to the work the correct measure of damages? 3. Has the auditor failed to apply the true rule of damages in either alternative?’ The report further states that ‘If, as a matter of law, the * * * [petitioners] were not entitled to recover, judgment is to be entered for the * * * [respondent]. If the * * * [petitioners] are entitled to recover as a matter of law, and the cost of repairing or replacing the damaged building is the correct measure of damages, then there is to be judgment for the * * * [petitioners] for * * * $17,693.52 with interest from the date of the writ. If the correct rule of damages is the diminution in value of the building due to the work, then there is to be judgment for the * * * [petitioners] for * * * $6,800 with interest from the date of the writ. If the auditor has not applied the correct rule of damages in either alternative, then the case is to be recommitted to the Superior Court for further hearing on the question of damages.’ It was agreed by the parties that all the material evidence in the case is contained in the auditor's report.

The material facts found by the auditor follow: In order to prevent the inundation of the downtown area of the respondent city by the flood waters of the Merrimack River, the city was authorized by St.1937, c. 405, to enter into a flood control project with the United States. This involved the construction of a sea-wall which ran directly behind the petitioners' premises. Because of excavations made and pile driving near the foundation of the petitioners' building in the course of the work, the walls of the building were badly cracked, and the floors were out of level. To restore the building to its previous condition would cost $17,693.52, whereas the diminution in value of the building was $6,800.

Statute 1937, c. 405, § 2, provides, so far as here material, that ‘* * * any person injured in his property by any act of said city under any provision of this act may recover from said city damages therefor under * * * chapter seventy-nine,’ and U.S.C. Sup. V, Title 33, § 701c, 33 U.S.C.A. § 701c(b), provides that the responsible local agency must give assurance to ‘* * * (b) hold and save the United States free from damages due to the construction works.’

In 1881 John C. Tilton, a predecessor in title, acting under the provisions of St.1872, c. 236, applied to the board of harbor commissioners for a license to extend the wharf on the premises in question to a point below high water mark, in accordance with a plan filed by him with the commissioners, from which it appears that the rear line of the proposed extension coincides with the rear line of Sargent and Holden's wharf adjoining. A license to extend the wharf in accordance with the petition and plan was granted on November10, 1881, and was duly approved by the Governor and Council on November 11, 1881.

In pursuance of the license, the licensee extended his wharf to the line set out in the plan ‘within the time prescribed by statute.’ Since the statute did not prescribe the time within which the work should be done, we interpret this to mean that the wharf was extended within the year following the issuance of the license. Later a two-story skating rink, which rested in part upon the wharf, was erected. In 1902 or 1903 the rink burned down. In April, 1903, the present brick building on the premises was erected in accordance with a permit issued by the city authorities.

The licensee, John C. Tilton, did not record the license and plan until January 13, 1883, which was more than a year after the effective date of the license. Statute 1872, c. 236, § 4, however, provided in part that ‘every license hereafter granted by said board shall be void, unless the same and the accompanying plan are recorded within one year from the date thereof, in the registry of deeds for the county or district within which the work licensed is to be performed.’ This provision of St.1872, c. 236, has remained in force in substantially the same language since its enactment. See G.L.(Ter.Ed.) c. 91, § 18. The petitioners contend that the word void in the statute should be construed as meaning voidable, that the presence of the building is not a nuisance and that the damage to the building is compensable.

Statute 1866, c. 149, provided for legislative authorization to build over tidewaters, and for a board of harbor commissioners who were to approve plans for and supervise the construction of the legislatively authorized structures (§ 4). Section 5 provided that ‘All erections and works hereinafter made without authority from the legislature or in any manner not sanctioned by the board of harbor commissioners, where their direction is required * * * shall be considered a public nuisance and liable to indictment as such.’ This statute made no provision for recording the license. (See G.L.(Ter.Ed.) c. 91, § 23, for similar provision as to such erections and works not authorized by the General Court or the department of public works.)

Statute 1869, c. 432 § 1, provided in part that ‘All authority or license that has been granted during the present session of the legislature, or that may be hereafter granted by the Commonwealth’ to build any structure over tidewaters ‘shall be revocable at any time, at the discretion of the legislature, and shall expire at the end of five years from its date, except where and so far as valuable structures, fillings or inclosures * * * shall have been actually and in good faith built or made under the same.’ This provision has remained in force since its enactment. See G.L.(Ter.Ed.) c. 91, § 15, to the same effect.

The harbor line on the water front of the Merrimack River in the city of Haverhill was established by St.1883, c. 104, wherein ‘John C. Tilton's wharf’ (the premises here involved) was referred to as one of the bounds. Section 2 of that statute provided in part that nothing in the act should be construed as authorizing the construction or extension of any wharf or as giving or confirming a right to maintain any structure in or over the tidewaters of the river, or as reviving or extending any grant or license theretofore made or given; and that any license theretofore given to build or extend any structure ‘beyond the harbor line established by this act is hereby revoked.’

The adoption of St.1872, to which we have already referred, was recommended by the harbor commissioners in order to ‘relieve the legislature of a class of applications involving no questions of principle, and which can all be brought under the operation of a general law.’ Sixth Annual Report of the Board of Harbor Commissioners (1872) page 72. See also pages 127, 128. While the commissioners in recommending the passage of the draft act which was adopted and enacted by the Legislature described three main features of the proposed law, one of which was the provision for recording the license and accompanying plan, they made no reference in their discussion of the draft act to the provision contained therein to the effect that the license shall be void unless it and the accompanying plan are recorded ‘within one year from the date thereof.’ The board, however, pointed out in its report (page 72) that the draft act (page 127), which it recommended was only a utilization of the Res.1859, c. 103, ‘concerning flats and shores belonging to the Commonwealth.’ That resolve contained a provision for recording all deeds and instruments made by the land agent in the recordsof the land office, and that ‘all title deeds, maps, charts and surveys relating to the aforesaid property shall be there deposited and kept.’ Nothing is said in the resolve about any failue to record. By St.1861, c. 85, the ‘land office, established for the...