Warner v. Mayor of Taunton

• Decision Date: 26 June 1925
• Citation: 253 Mass. 116,148 N.E. 377
• Parties: WARNER v. MAYOR OF TAUNTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 116

148 N.E. 377

WARNER

v.MAYOR OF TAUNTON et al.

Supreme Judicial Court of Massachusetts, Bristol.

June 26, 1925.

Case Reserved from Supreme Judicial Court, Bristol County.

Petition for mandamus by Richard E. Warner against the Mayor of Taunton and others to compel removal of gasoline pumps located within limits of certain designated ways. Case reserved by single justice on pleadings and agreed statement of facts. Petition dismissed.

J. L. Hurley, of Boston, for petitioner.

F. J. Carney, J. A. Canavan, and P. E. Troy, all of Boston, for intervening respondents Barlow and others.

D. J. Lyne and S. L. Kaplan, both of Boston, for intervening respondents Cole and others.

CROSBY, J.

The petitioner, a citizen taxpayer and resident of the city of Taunton, brings this petition for mandamus against the mayor, members of the municipal council, and the superintendent of streets of that city, to compel the removal of certain gasoline pumps located within the limits of certain designated ways. The case is reserved upon the pleadings and an agreed statement of facts for the determination by this court.

It is agreed that the gasoline pumps are located and used by the abutting owners, who are the intervening respondents; that the city has granted licenses and permits to them, respectively, to locate, maintain and use the pumps at places in the highways about one foot from the curb line and within the limits of the sidewalks in front of their respective premises, and the pumps have been erected and maintained under and by virtue of such licenses and permits (Revised Ordinances of the City of Taunton [1912] c. 30, §§ 1, 2); that they are about ten feet high and eighteen inches in diameter at the base, and are constructed of metal surmounted by a glass globe; that they are used for the sale and delivery of gasoline into automobiles of the traveling public near the pumps; that the gasoline is stored in underground tanks, located on land of the intervening respondents, with pipes connecting the tanks and the pumps. It is the contention of the petitioner that the structures are unlawful and substantial encroachments upon the highways, and that travelers are prevented thereby from having free and unobstructed use of the streets and sidewalks, ‘in violation of the rights of your petitioner and other citizens.’

The allegations of the petition are in substance and effect that the structures so located and maintained constitute a public nuisance. The tenth paragraph of the agreed statement of facts is in part as follows:

‘No question is made by the respondents that the petitioner is a proper party to bring these proceedings and that mandamus is a proper remedy.’

At the outset the question arises, Has this court jurisdiction to entertain the petition and grant to the petitioner the relief which he seeks? The fact that mandamus is agreed by the respondents to be the proper remedy cannot affect the duty of the court where the question of jurisdiction is involved. Waiver by the parties cannot confer jurisdiction over a cause which is not vested in the court by law. It is the duty of the court to consider such a point on its own motion. Eaton v. Eaton, 233 Mass. 351, 364, 124 N. E. 37, 5 A. L. R. 1426, and cases there cited. Commonwealth v. Andler, 247 Mass. 580, 582, 142 N. E. 921.

The rule is well established that where a common or public right of a person which the people generally may exercise and enjoy, such as the use of a highway, has been invaded or impaired, a mere deprivation or obstruction of such use...