Turner v. Town of Gardner

• Decision Date: 22 October 1913
• Citation: 216 Mass. 65,103 N.E. 54
• Parties: TURNER v. TOWN OF GARDNER; WARFIELD et al. v. TOWN OF GARDNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 65

103 N.E. 54

TURNER v. TOWN OF GARDNER; WARFIELD et al. v. TOWN OF GARDNER.

Supreme Judicial Court of Massachusetts, Worcester.

October 22, 1913

Oct 22, 1913.

COUNSEL

Jos. P Carney and Herbert W. Blake, both of Gardner, for plaintiffs.

Jas. A. Stiles, Owen A. Hoban, and Clifford S. Anderson, all of Gardner, for respondent.

OPINION

RUGG, C.J.

These are petitions brought by a lower riparian propertor upon Otter river, an unnavigable stream, for damages arising from the taking and diversion of the waters of Perley brook, a tributary confluent to the river above the plaintiff's premises, by the defendant under the authority of St. 1902, c. 287. The question is whether the petitions were brought seasonably. The decision turns upon the construction to be given to several sections of the statute. Section 1 empowers the defendant to 'take by purchase or otherwise the waters' of the brook. Section 2 provides that 'said town shall, within 90 days after the taking of any * * * water sources, * * * otherwise than by purchase or agreement, file and cause to be recorded in the registry of deeds * * * a description thereof sufficiently accurate for identification, with a statement, signed by the water commissioners * * * of the purpose for which the same were taken.' Section 3 provides that any person injured by any taking who is unable to agree with the town as to the amount of his damage may have it assessed and determined 'on making application at any time within the period of two years after the taking of such land or property or the doing of other injury under the authority of this act; but no such application shall be made after the expiration of said two years.'

The facts are that the water commissioners, who under the statute act for the defendant, on September 14, 1909, 'voted that the town of Gardner take' a part of the waters of Perley brook, and further voted that a description be executed and recorded. Under the same date a formal instrument of taking was prepared, which recited the vote and declared that the town of Gardner 'has taken and by these presents does take' the waters of the brook. Two copies of this taking were filed in the registry of deeds differing only in the acknowledgment clause, on the 16th of September and 20th of October, respectively, in the year 1909. Physical diversion of the water of the brook was made for the first time on February 23, 1910. These petitions were filed February 16, 1912. The point is whether the limitation of time within which petitions may be brought under section 3 begins to run from the filing of the instrument of taking or from the date of actual diversion.

There is no uniformity as to this subject in the form of the many water acts enacted in this commonwealth. Any apparent diversity in decisions will be found to rest chiefly upon the differences in the form of the several acts under consideration. These differences depend mainly, so far as concerns the present issue, upon the varying significations in which the word 'taking' is used. Decisions as to its meaning in one statute and the procedure described by it need to be scrutinized with care before they are given weight as precedents in interpreting it in another. 'Taking' is susceptible of different meanings as used in these several water statutes, and even in the same statute may permit different sets of facts to constitute a passing of title. For instance, a literal interpretation of St. 1846, c. 167, under consideration in Moore v. Boston, 8 Cush. 274 seemed to indicate a plain demarcation between the fact of taking and the filing of the description. At all events, the practical interpretation placed upon it by the conduct of the city of Boston was that a physical appropriation should precede the filing of a description of the land appropriated. The paper filed in the registry of deeds in that case (as described in the opinion of the court) was a mere description of the land, which proceeded upon the assumption that there had been a prior appropriation, the only evidence of which was the actual entry upon the land. It well may be that it would not lie in the mouth of a defendant to claim under such circumstances that its original entry upon the land was a trespass. This consideration has added force since it was plain from section 8 of that act that as to water and water rights the actual diversion was the event from which the statute of limitations began to run. The interpretation placed upon the meaning of the statute was the one upon which the defendant had acted and from which it was endeavoring to escape to its own advantage by putting forward a different one when haled into court for the assessment of damages. That case is not authority for the proposition that if under it an instrument of taking otherwise perfect, filed in the registry of deeds, had declared by its terms that it was itself the taking contemplated by the statute, it would not have passed title. Northborough v. County Com'rs, 138 Mass. 263, had to do with the taking of water and water rights and not of land. St. 1882, c. 192, there interpreted, in section 3 plainly defined the taking of water rights from which the statute of limitations began to run as the time 'when the water is actually withdrawn or diverted by the town.' The decision followed the clear language of the statute as interpreted by its own words. In that case also the diversion was made before the description was filed, and unless the physical act was a taking under the statute it was a trespass. Moreover, in that case as in Moore v. Boston, the landowner by the form of his action proceeded upon the theory that the taking was legal. The same kind of a statute in the respect that the limitation began to run from the actual diversion of the water was before the court in Tileston v. Brookline, 134 Mass. 438, and Ipswich Mills v. County Com'rs, 108 Mass. 363, and the language of the opinions in these cases must be read in reference to the terms of the statute. The same general observations are true of several other cases relied on by the petitioners where the only act of expropriation was the physical one of diversion, without any paper taking filed in the registry of deeds, conduct which would have been tortious unless performed under the authority of the statute, and it has been held not open to the respondent to deny that it was acting under a legal power when that assumption was made in its favor by the injured landowner. Cowdry v. Woburn, 136 Mass. 409; AEtna Mills v. Waltham, 126 Mass. 422; Bailey v. Woburn, 126 Mass. 416. Warren v. Spencer Water Co., 143 Mass. 9, 8 N.E. 606, was a case where no provision was made for a formal taking of water rights, and the defendant had made an invalid taking of land by which alone it undertook to obtain access to the source of water supply, and it was held that an action of tort lay in favor of the landowner both for trespass upon the land and for diversion of the water. Under its peculiar circumstances that decision may be sustained, but it is to be noted that there the landowner brought an action of tort and did not proceed upon the assumption that the diversion of water was legal. See, also, Gloucester Water Supply Co. v. Gloucester, 179 Mass. 365, 60 N.E. 977; Bryant v. Pittsfield, 199 Mass. 530, 85 N.E. 739, and Middleborough v. Taunton, 203 Mass. 31, 89 N.E. 155. The same may be said of Wamesit Power Co. v. Allen, 120 Mass. 352, and Lund v. New Bedford, 121 Mass. 286, where, however, the statutes required a filing of a certificate as a condition subsequent to a physical appropriation. Where a city relies upon a taking by law as a defense to an action of...