Tilton v. City of Haverhill

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

311 Mass. 572

42 N.E.2d 588

CHARLES L. TILTON & others
v.
CITY OF HAVERHILL.

Supreme Judicial Court of Massachusetts, Essex.

May 28, 1942

May 14, 1941.

Present: FIELD, C.

J., DONAHUE, LUMMUS, & DOLAN, JJ.

Tidewaters. Harbors.

License. Words, "Void.

"

Failure to record, within one year from its date as required by St. 1872, c. 236, Section 4, a license, granted in 1881, and the accompanying plan for an extension of a wharf below high water mark rendered the license void and not merely voidable, and successors in title of the licensee were not entitled to recover under St. 1937, c. 405, Section 2, for damages to a building on such extension.

PETITION, filed in the Superior Court on March 24, 1938. The respondent in its answer alleged that the petitioners "are maintaining a public nuisance on the land described in said petition in that they are occupying land beneath the high water mark and land beneath the low water mark of the Merrimack River in Haverhill . . . without being duly licensed therefor."

The case was heard and reported by Williams, J. S. Parsons, for the petitioners.

W. C. McDonald, City Solicitor, (W.

S. Soroka, Assistant City Solicitor, with him,) for the respondent.

DOLAN, J. 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? [311 Mass. 573]

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 Supeior 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, Section 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, Section 701c, provides that the responsible local agency must give assurance to [311 Mass. 574]

". . . (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 November 10, 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, Section 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, Section 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 [311 Mass. 575] to build over tidewaters, and for a board...