Wood v. Inhabitants of Westborough
| Decision Date | 05 January 1886 |
| Citation | 5 N.E. 613,140 Mass. 403 |
| Parties | WOOD and others v. INHABITANTS OF WESTBOROUGH and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Bill in equity, by William L. Wood, Sarah A. Collins, and Viola R.A Belknap, against the inhabitants of Westborough, Charles Aldrich, and Abner Prentiss, alleging that since September 28, 1882, the plaintiffs have been the holders of a certain mortgage, dated April 6, 1877, and duly recorded, given by the defendant Aldrich to W.B. Wood, the father of the plaintiffs, upon certain land, with the buildings thereon situated in Southborough, upon the Sudbury river, which furnished a water privilege to the factory building upon said premises, which privilege formed a valuable part of said premises; that the mortgage was given to secure the payment of a note from Aldrich to W.B. Wood, upon which $2,500 were now due; that the inhabitants of Westborough, under the authority of St.1873, c. 77, have, since the date of said mortgage, diverted from the mortgaged premises the water of a certain brook, which was a tributary of the Sudbury river, by means of a dam across the brook, whereby the mortgaged premises were greatly injured in value; that Aldrich, under authority of said statute, on March 5, 1883 brought a petition in the superior court for the assessment of the damages caused by said diversion, and obtained a verdict against said inhabitants for $621.28, but no judgment has been entered thereon; that the defendant Prentiss has brought suit against Aldrich, and summoned said inhabitants as the trustee of said Aldrich, and the bill asked that the inhabitants of said town be enjoined from paying said sum of $621.28 to any person except the plaintiffs; that they might be decreed to pay the same to the plaintiffs; and that Aldrich and Prentiss might each be enjoined from collecting said sum of the town of Westborough. At the hearing in the superior court, before BARKER, J., the following facts, in addition to those in the bill, appeared:
On February 3, 1880, Dexter Newton was duly appointed administrator of the estate of W.B. Wood, who died on January 14, 1880, and received said mortgage as part of the assets of the estate, and continued to hold it until September 28 1882, when he assigned it to the plaintiffs, who were all the distributees of said estate. Neither W.B. Wood, Newton, nor the plaintiffs have ever entered upon the mortgaged premises for the purpose of foreclosure or otherwise. Newton refrained from foreclosing the mortgage while he held it, at the plaintiffs' request, on account of the pendency of the suit brought by Prentiss against Aldrich. Neither W.B. Wood, Newton, nor the plaintiffs have filed or made any claim for damages to the mortgaged premises caused by the taking of said waters by the town. The plaintiff Wood was a resident of Westborough, and also knew of such taking at the time; but it did not appear that the other plaintiffs knew of it. The plaintiff Wood was informed of the petition filed by Aldrich while it was on trial, and refused to intervene therein.
The judge found and ruled that there had been no such laches on the plaintiffs' part, or of the preceding holders of said mortgage, as should bar the plaintiffs from seeking equitable relief; but there had been no actual or intentional waiver on the plaintiffs' part, or of those under whom they claimed, of the right to have the damages applied to the satisfaction of the mortgage; that St.1881, c. 110, was remedial, and applicable to any petition for the assessment of damages claimed for the taking of said brook by the inhabitants of Westborough instituted after April 18, 1881; that, under said statute, the plaintiffs had a plain, adequate, and complete remedy at law, and were not entitled to the equitable relief sought; and ordered a decree dismissing the bill, with costs; and the plaintiffs excepted.
W.S.B. Hopkins, for plaintiffs.
F.P. Goulding and C.R. Johnson, for defendant Prentiss.
As St.1881, c. 110, (Pub.St. c. 49, § 110,) was remedial in its character, and was not intended to change any rights of parties, who, as mortgagors or mortgagees, had interests in land which had been taken for public purposes, but only to provide a more convenient mode of adjudicating and adjusting them, it would be applicable to proceedings begun after its passage, even if the land to which they related had been previously taken. One remedy may be...
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