McNamara v. Commonwealth, Supreme Judicial Court of Massachusetts (1903)

Hearing: September 30, 1903. Decision: October 21, 1903. Chief Justice Knowlton delivered the opinion. Petition filed June 3, 1901; amended June 22 and November 5, 1901. Matter reserved to the full court by agreement after hearing before Lathrop, J.

Factual and Procedural Background

Austin D. McNamara (the petitioner) filed a petition, as amended, under St. 1895, c. 488, § 14, seeking assessment of damages for injury to real estate alleged to have been caused by the doings of the metropolitan water board. The petitioner's estate comprises about fifty square rods with three tenement houses and sheds. Part of the estate lies within, and part lies outside, the boundary lines described in the statute applicable to Clinton.

Commissioners were appointed and made a report. The case was heard before Judge Lathrop on that report and, by agreement of the parties, was reserved for consideration and disposition by the full court. The petitioner indicated a willingness to surrender his real estate, and the commissioners determined its value.

Counsel of record: J.W. Corcoran and W.B. Sullivan for the petitioner; R.A. Stewart, Assistant Attorney General, for the Commonwealth.

Legal Issues Presented

Whether, under St. 1895, c. 488, § 14 (which provides compensation to owners of real estate not taken but directly or indirectly decreased in value by the doings of the metropolitan water board within certain prescribed lines in Clinton), the owner of real estate lying partly within and partly outside the designated territory may recover for indirect damage to his entire estate or only to the portion within the designated boundaries.
Whether a draining of a well caused by the acts of the metropolitan water board constitutes a special and peculiar damage directly compensable under other provisions of the statute (such damages being recoverable whether any land is taken or not).
Under § 15 of St. 1895, c. 488, where a petitioner offers to surrender his land and commissioners determine its value, whether the metropolitan water board is obliged to take the land or whether the board may elect either to take the land or to pay the damages — in particular, the effect of the clause "if they so prefer."

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Fairbanks v. Commonwealth, 183 Mass. 373	Cited in support of the characterization of the statute's provision as addressing peculiar, remote, or consequential damages.	Used to justify interpreting § 14 narrowly as applying to real estate within prescribed boundaries that are peculiarly affected by the statute.
Burnett v. Commonwealth, 169 Mass. 417	Cited alongside other cases about the nature of damages covered by the statute.	Referenced to support the conclusion that the statute's clause for indirect damages applies only to property within the designated place.
Nashua River Paper Co. v. Commonwealth, ante, 279	Used as part of the authorities describing the scope of damages under the metropolitan water act.	Cited both in the discussion of the peculiar nature of § 14 damages and later as authority for allowing special and peculiar damages under other statutory provisions.
Parker v. Boston Maine Railroad, 3 Cush. 107	Cited for principles governing allowance of damages when measured "in the same manner as damages for lands taken for highways."	Invoked to support that special and peculiar direct damages (e.g., drainage of a well) may be allowed under statutory provisions modeled on highway-taking damage procedures.
Trowbridge v. Brookline, 144 Mass. 139	Cited on the method of determining damages comparable to those for lands taken for highways.	Applied to show that direct and proximate special damages can be recovered whether land is taken or not.
Dana v. Boston, 170 Mass. 593	Cited as authority in the line of cases about assessment of damages for statutory taking or acts under municipal powers.	Used to support the court's approach to compensable direct damages under the statute.
Sheldon v. Boston Albany Railroad, 172 Mass. 180	Cited among cases bearing on special damages and their allowance when statutory procedures reference highway-taking standards.	Relied upon to justify awarding special and peculiar damages that are direct and proximate.
Bickford v. Hyde Park, 173 Mass. 552	Cited regarding the nature and assessment of damages in statutory takings or related proceedings.	Referenced to support the proposition that special direct damages like draining of a well are recoverable under the statute.
Putnam v. Boston Providence Railroad, 182 Mass. 351	Cited as part of the body of case law concerning direct and special damages and statutory compensation procedures.	Used in the court's discussion to justify awarding certain direct damages under statutory provisions.
Chelsea Dye House Laundry Co. v. Commonwealth, 164 Mass. 350	Cited for the proposition that, where the cause of damage does not come within other provisions of a statute, a case must stand, if at all, on the statutory word "taking" — and that taking of rights in a public highway was not considered a "taking" in that context.	Discussed to explain limits of recovery where the statutory language does or does not reach a particular cause; the opinion notes this case's reasoning was followed in subsequent cases.
Cabot v. Kingman, 166 Mass. 403	Cited as following the Chelsea Dye House Laundry Co. rationale.	Noted as a case that followed the principle limiting "taking" when the cause of damage did not fall within other statutory provisions.
Magee Furnace Co. v. Commonwealth, 166 Mass. 480	Cited similarly as following Chelsea Dye House Laundry Co.'s reasoning.	Referenced to illustrate the court's approach in related prior decisions about the scope of "taking" and recoverable damages.

Court's Reasoning and Analysis

The court began with the statutory clause in St. 1895, c. 488, § 14, which gives compensation to owners of real estate not taken but directly or indirectly decreased in value by the doings of the metropolitan water board and applies to property "situated between certain lines" in Clinton. The court characterized this provision as addressing a peculiar category of remote or consequential damages affecting property within a prescribed place.

Applying that interpretation, the court concluded that the indirect-damage clause (§ 14) was intended to compensate only those owners whose property lies within the prescribed boundaries; therefore, no award under that clause can be made for damages to real estate outside those boundaries.

The court then addressed the fact (from the commissioners' report) that the acts of the water board had drained the petitioner's well located on the portion of his property outside the statutory lines. The court treated this as a special and peculiar damage caused directly by the doings of the board. It analyzed other statutory provisions (including earlier clauses of the same section and Sections 12 and 13) that provide for damages "for all acts done under the statute" and require damages to be determined "in the same manner as damages for lands taken for highways." Relying on authorities cited, the court concluded that such provisions permit allowance of special and peculiar direct damages (like the draining of a well) irrespective of whether any of the petitioner's land is taken.

On the petitioner's offer to surrender his real estate and the commissioners' determination of its value, the court considered § 15's phrase "if they so prefer." The court construed those words as giving the metropolitan water board a choice: they are not obliged to take the property; they may elect either to take the land or to pay the value (damages). Only if the board prefers to take the whole does any obligation beyond paying damages arise.

Based on these analyses, the court directed that the report be recommitted for assessment of those damages that are recoverable under the proper statutory provisions (i.e., compensable direct damages and such indirect damages as relate to the portion of the property within the statutory lines).

Holding and Implications

Holding:

The petitioner may recover under St. 1895, c. 488, § 14 only for indirect (remote or consequential) damage to that part of his property which lies within the boundaries described in the statute; no award under that clause can be made for property outside those boundaries.
Damage consisting of the draining of a well caused by the acts of the metropolitan water board constitutes a special and peculiar direct damage for which compensation is available under other statutory provisions, whether or not any land of the owner is taken.
Under § 15, where a petitioner offers to surrender his land and its value has been determined by commissioners, the metropolitan water board is not obliged to take the land but may elect either to take it or to pay the value; the phrase "if they so prefer" confers that choice.

Implications for the parties: The practical effect is that the petitioner's claim must be limited as follows — indirect damages claimed under § 14 can be assessed only for the portion of the property within the statutory lines; direct special damages (e.g., loss from draining of a well) are compensable under the other provisions and should be assessed accordingly. The case was recommitted to the commissioners to assess such recoverable damages.

The opinion applies statutory text and prior decisions in resolving these questions; it does not announce a novel departure from established principles but construes the relevant statutory provisions and applies existing precedents to the facts presented.

Show full summary ...

AUSTIN D. McNAMARA vs. COMMONWEALTH.

Metropolitan Water Act. Damages. Under St. 1895, c. 488, § 14, which provides compensation for the owners of real estate situated between certain lines in the town of Clinton, which is directly or indirectly decreased in value by that act or the doings of the metropolitan water board, the owner of real estate lying partly within and partly outside of the described territory can recover for indirect damage only to that part of his property which is within the designated boundaries.

Under those portions of St. 1895, c. 488, which provide compensation for damage caused directly by the doings of the metropolitan water board, the draining of a well by the acts of the board is a special and peculiar damage for which a landowner is entitled to compensation whether his land is taken or not.

Under St. 1895, c. 488, § 15, providing that the metropolitan water board, upon agreement or determination of damages, shall notify the landowner that they will pay the damages, "or, in case the petitioner offers to make surrender, if they so prefer, they will pay the value so agreed upon or determined", the water board, on an offer of a petitioner to surrender his land and a determination of its value by the commissioners, may elect either to take the land or to pay the damages.

KNOWLTON, C.J.

The petitioner seeks to recover damage to his property under that clause of St. 1895, c. 488, § 14, which gives compensation to the owner of any real estate not taken but directly or indirectly decreased in value by the doings of the metropolitan water board, situated between certain lines in the town of Clinton. His estate contains about fifty square rods, with three tenement houses and sheds thereon. A part of it lies inside and a part outside of the boundaries given in the statute. The first question is whether he is entitled to damage to his entire estate or only damage to that part of it within the designated boundaries. This is a peculiar provision, giving damages which may be remote and consequential, and which are produced by causes operating only indirectly upon the property. Fairbanks v. Commonwealth, 183 Mass. 373. Burnett v. Commonwealth, 169 Mass. 417. Nashua River Paper Co. v. Commonwealth, ante, 279. For this reason it is only real estate within a prescribed place that was thought to be peculiarly affected by the statute which gives its owner a right to this kind of damages. We think it plain that no award can be made under this clause of the statute for damages to real estate which is not within the prescribed boundaries.

The report also shows that the acts of the water board have drained the petitioner's well on that part of his property which is outside of the lines mentioned. This appears to be a special and peculiar damage caused directly by the doings of the board, which is covered by other provisions of the statute. An earlier clause in this section gives damages to the owner "of any real estate injured by the taking of the waters of said Nashua River." Sections 12 and 13 give damages to property for all acts done under the statute, and these damages are to be determined "in the same manner as damages for lands taken for highways are determined." Under this provision there may be an allowance of special and peculiar damages which are at the same time direct and proximate, like the draining of a well, whether any part of the petitioner's land is taken or not. R.L.c. 48, § 15. Parker v. Boston Maine Railroad, 3 Cush. 107. Trowbridge v. Brookline, 144 Mass. 139. Dana v. Boston, 170 Mass. 593. Sheldon v. Boston Albany Railroad, 172 Mass. 180. Bickford v. Hyde Park, 173 Mass. 552. Putnam v. Boston Providence Railroad, 182 Mass. 351. Nashua River Paper Co. v. Commonwealth, ante, 279. In Chelsea Dye House Laundry Co. v. Commonwealth, 164 Mass. 350, which was followed in Cabot v. Kingman, 166 Mass. 403, and Magee Furnace Co. v. Commonwealth, 166 Mass. 480, the decision was put distinctly upon the ground that the cause of the damage did not come within any other of the provisions of the statute, and that the case must stand, if at all, upon the word "taking" in the metropolitan sewer act, and it was held by a majority of the court that the taking of rights in the public highway imposed no additional servitude upon the land under the highway, and was therefore not a taking within the meaning of that part of the statute. The opinions in some other cases under that act should be read with this fact in mind. So far as the petitioner has suffered damage to his property which would be recoverable if it were caused by taking land for a highway, it should be allowed under this petition, and the case should be recommitted for the assessment of such damage.

The petitioner in the petition signified his willingness to surrender his real estate, and the commission has accordingly determined its value. The question is now raised whether the Commonwealth is obliged to take it, or whether the water board may elect either to take it or to pay the damage. This question depends upon the effect of the words "if they so prefer" in the fifth and sixth lines of § 15. These words do not make it obligatory upon the board to take the property, but leave them to exercise their preference. It is only in case they prefer to take the whole that they are obliged to do more than to pay the damages.

Report recommitted.

McNAMARA v. COMMONWEALTH