FRANCIS J. MCSORLEY vs. TOWN OF HANCOCK & another. [Note 1]

DREBEN, J. The question before us is whether the plaintiff is precluded from recovering damages from the town of Hancock (town) or the Commonwealth in this eminent domain

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action by reason of a prior judgment against the Commonwealth. We hold that he is not barred. [Note 2]

We relate the facts as found by the trial judge and as supplemented by undisputed evidence. The plaintiff is the owner of a dairy farm which was bisected by a taking by the Commonwealth in 1969 to build a relocation of Route 43 in Hancock. Dissatisfied by the award of the Commonwealth (see G. L. c. 79, Section 6), the plaintiff brought an action which resulted in a settlement, and after a pro forma hearing before a Superior Court judge, in a judgment. The judgment, which was entered in 1973, included compensation not only for the land formally taken by the Commonwealth for the highway and for one drainage easement, but also included an award for damages resulting from the Commonwealth's building of certain additional drains which caused water to flow on the plaintiff's remaining land. [Note 3] In December, 1973, after the highway was completed, the Commonwealth conveyed the road to the town.

In 1974, part of the slope leading from the newly constructed highway began to slide, causing large portions of fill to fall on the plaintiff's land. The Commonwealth designed corrective measures to reconstruct the slope and redirect the water by building a series of rock filled channels through which water could flow. The town, in 1975, took a strip of land and a temporary construction easement for this reconstruction project which was designed and performed by the Commonwealth. [Note 4] The slope restoration and

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channeling of the surface water resulted in additional flooding of the plaintiff's remaining land "rendering such portions of the land useful only for pasturing his dairy cows, and no longer useful for the growing of crops." The judge found that eight acres were lost to the plaintiff for the use of growing crops and that if he were entitled to be compensated for the partial loss of those eight acres, he would receive $4,800. However, the judge entered judgments of dismissal in favor of both defendants because he ruled "that plaintiff cannot recover in this action because all of the elements for which he is now seeking compensation were within the contemplation of the parties at the time of the settlement for the 1969 taking." We take the judge to have meant by this ruling that the plaintiff is barred in this action under the principles of prior adjudication. [Note 5] We do not agree.

The defendants, the parties relying on preclusion, have the burden of establishing that the prior litigation precludes the present claim. Butler v. Martin, 247 Mass. 112, 118 (1923). Watson v. Berman, 302 Mass. 305, 307 (1939). Cochrane v. Cochrane, 303 Mass. 467, 472 (1939). Restatement (Second) of Judgments Section 68, Comment f (Tent. Draft No. 4, 1977). They must establish either: (1) claim preclusion, namely, that if both actions were brought for the same claim or cause of action, the judgment in the former action binds the plaintiff upon all issues that were or might have been litigated therein; or (2) if the claims in the two suits are not identical, issue preclusion, namely, that the issue sought to be precluded in the present action is one which was actually litigated and determined in the prior action, Watson v. Berman, 302 Mass. at 307, and was essential to the judgment entered therein. Wishnewsky v. Saugus, 325 Mass. 191, 195 (1950).

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The defendants attempt to sustain the judgments by arguing that the plaintiff was awarded damages in the former action for injury to the eight acres which he claims were flooded by the 1975 improvements. Their argument appears to be that since the plaintiff claimed in the prior action that his land was rendered incapable of being farmed, and was awarded damages for such injury, he cannot now relitigate that question. Therefore, he cannot now urge that the damages or potential damages which were determined to have occurred in 1969 occurred in 1975. We think, after examining the pleadings and the transcript of the prior proceedings (an exhibit in this action), that the defendants have shown neither claim nor issue preclusion. [Note 6]

1. Claim preclusion. The prior action was brought to recover damages for the 1969 taking and the public improvements for which that taking was made. These included all the damages caused to the remainder of the plaintiff's land by the construction and maintenance of certain drains. G. L. c. 79, Section 12. [Note 7] See Fowle v. New Haven & Northampton Co., 112 Mass. 334, 338-339 (1873); Massachusetts Turnpike Authy. v. Perini Corp., 349 Mass. 448, 453 (1965). For purposes of claim preclusion, that action determined all damages, both past and future, resulting from the 1969 taking or the public improvements, even if the Commonwealth did not utilize the rights it obtained until a later time. See Brady v. Fall River, 121 Mass. 262, 264 (1876); Flagg v. Concord, 222 Mass. 569, 571-572 (1916); 4A

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Nichols, Eminent Domain Section 14.241(3) (rev. 3d ed. 1979). Also, even if the damages now being sought were an unanticipated result of the 1969 taking, or if the parties were in error or had insufficient information about the 1969 damages, the parties (or their representatives) would be barred from any claim for damages from the 1969 taking. Restatement (Second) of Judgments Section 61.1, Comment b on clause (a) (Tent. Draft No. 5, 1978).

We do not view the plaintiff's claim in the present action as one for damages for the 1969 taking. While the judge did not make a finding in such express terms, we think it clear from the evidence, and from his findings concerning the extensive corrective measures undertaken by the defendants in 1975, that the reconstruction constituted a second independent taking and a new public improvement. Snow v. Provincetown, 109 Mass. 123, 125 (1872). Albro v. Fall River, 175 Mass. 590, 592 (1900). See Holbrook v. Massachusetts Turnpike Authy., 338 Mass. 218, 222-223 (1958). The 1975 reconstruction was not within the scope of the drainage easements which the Commonwealth had previously acquired by reason of the prior taking and judgment, nor, as put in some early cases, was it "necessary to and contemplated" in the original project. See, e.g., Lane v. Boston, 125 Mass. 519, 520 (1878); Snow v. Provincetown, 109 Mass. at 125; Ryan v. Boston, 118 Mass. 248, 250 (1875). The formal taking in 1975 of an additional strip of land and a temporary easement supports this conclusion. See note 4, supra. Contrast Cole v. Boston Edison Co., 338 Mass. 661, 668-669 (1959) (one project involving two takings). We hold, therefore, that the present action which seeks damages for an independent 1975 taking is not barred under the principles of claim preclusion.

2. Issue preclusion. The plaintiff's claim for damages because of the flooding of the additional eight acres is also not barred on the principles of issue preclusion. Those principles apply "where it is plain that an issue attempted to be raised in the second case was the same issue which was so necessarily involved in the first action that the judgment

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which was entered therein could not possibly have been entered on any ground other than that this issue was adjudicated adversely to the party later attempting to present it." Wishnewsky v. Saugus, 325 Mass. at 195. This is a strong statement and issue preclusion requires that "the determination to be carried over shall not only have been litigated in the first action, but shall have been essential to the judgment in that action." Rudow v. Fogel, 376 Mass. 587, 591 (1978). Restatement (Second) of Judgments Section 68 (Tent. Draft No. 4, 1977).

The defendants have not shown that a finding of flooding or potential flooding of these eight acres was essential to the former judgment. To the contrary, the record of that action does not provide us with "enough reliable information available from which to ascertain what elements of . . . damages [to the remainder of the land] were included" in the prior judgment. United States v. 2,997.06 Acres of Land, 471 F.2d 320, 335 (5th Cir. 1973). In the case cited, the issue on appeal was whether a canal authority had acquired the right to flood a parcel of land by reason of a judgment in a prior State eminent domain proceeding. If the authority had acquired such rights, it would be entitled to a portion of the award made to the landowner in a subsequent Federal condemnation proceeding involving the taking in fee of the same parcel. The court held that the authority was not entitled to any portion of the Federal award because it could not be determined which of the several elements of damage [Note 8] were included in the jury award in the prior State action.

Similarly here, the plaintiff in the former action sought many elements of damages, including an amount for the parcels actually taken, for the drainage easement formally taken, for injury to the remaining land on each side of the

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highway, for lack of access, as well as for damages on account of water which ran onto a portion of the plaintiff's remaining land. The elements which went into the award cannot be ascertained. The award was for $11,500 (plus interest and costs), although the damage testified to by the plaintiff's expert at the pro forma hearing was $22,000. Moreover, and perhaps even more important, it is not clear that the eight acres in question were damaged by water at all, [Note 9] and there is no suggestion that the plaintiff sought damages for, or that evidence was introduced to prove, potential, as contrasted with actual, flooding. In these circumstances, the defendants have fallen far short of showing that damages for flooding or potential flooding of the eight acres were determined, let alone were an essential element, in the prior judgment.

3. Other matters. The plaintiff is, therefore, not barred, [Note 10] and is entitled to compensation for the second taking and the reconstruction project as authorized by statute. G. L. c. 79, Sections 1, 12. G. L. c. 83, Section 4. Kane v. Hudson, 7 Mass. App. Ct. 556, 559-560 (1979). Contrast Callender v. Marsh, 1 Pick. 418, 432 (1823). The amount is governed by G. L. c. 79, Section 12, and is measured by the value of the land taken in the 1975 taking, see note 4, supra, and the injury caused by the taking and the new public improvements. See note 7, supra. The judge found $4,800 to be the amount of damage caused by the 1975 public improvements to the remaining land of the plaintiff. We hold, therefore, that the plaintiff is entitled to $4,800.

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The claim of the Commonwealth that the plaintiff's action is barred by the statute of limitations is without merit. The amended complaint, which added the Commonwealth as a party, relates back to the time of the original complaint. Mass.R.Civ.P. 15(c), 365 Mass. 762 (1974). Bernier v. Boston Edison Co., 380 Mass. 372, 389 (1980).

Accordingly, the judgments dismissing the plaintiff's action against both the town and the Commonwealth are reversed, and the action is remanded to the Superior Court for further proceedings not inconsistent with this opinion. [Note 11]

So ordered.