LETITIA B. EVANS vs. CITY OF BOSTON.
Municipal Corporations. Boston.
A taking by the street commissioners of the city of Boston under St 1897, c. 426, by an order locating a new channel for the Neponset Avenue branch of Stony Brook, of "the right to maintain said new channel and other sewerage works" in the land described, includes the right of using the channel for a house sewer.
PETITION , filed March 24, 1904, alleging that on and before June 27, 1899, the petitioner was the owner in fee of a certain parcel of land in that part of Boston called Roslindale; that she has continued to be the owner of this parcel of land subject to the easement of "the relocation of the Neponset Avenue branch of Stony Brook" through said land by an order of the board of street commissioners of the city of Boston passed on June 27, 1899; that on December 21, 1903, the respondent took an additional easement to enable it "to build sewerage works" through this parcel of land; that the petitioner being aggrieved by such taking for sewerage works, for which taking she has not received from the respondent any compensation, petitions that her damages for the taking for sewerage works may be assessed by a jury. There followed a description of the land.
In the Superior Court the case was heard by Bond, J. upon an agreed statement of facts.
It appeared that on June 27, 1899, the street commissioners made the taking through the petitioner's land which is described in the opinion; that in 1900 a trench was dug; that on May 22, 1900, the street commissioners notified the city auditor that the petitioner had been awarded $283 ; that on May 29, 1900, the petitioner signed a release which is described in the opinion, and on June 1, 1900, the award was paid upon the petitioner's order; that on November 30, 1903, it was decided by the proper authorities of the city to construct a sewer through a portion of the strip of land in which the above mentioned easement had been taken,
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and on December 11, 1903, the superintendent of streets of the city filed in the registry of deeds a notice of his intention to construct such a sewer; that in the spring and summer of 1904, the respondent enlarged the trench already dug and constructed and laid the pipe for the branch of Stony Brook and the pipe for the house sewer within the limits of the strip previously taken.
The judge found for the petitioner, and assessed damages in the sum of $250. The respondent appealed.
P. Nichols, for the respondent.
H. H. Smith, for the petitioner.
LORING, J. The board of street commissioners of the city of Boston, acting under St. 1897, c. 426, located a new channel for the Neponset Avenue branch of Stony Brook on land of the petitioner, and took "the right to maintain said new channel and other sewerage works in said land."
It was held in Atkins v. Boston, 188 Mass. 77, that under such a taking the city had a right to use the channel for sewerage purposes which includes a right to use it for a house sewer.
The petitioner's objection is that the notice of the hearing under which the taking in question was made was a notice "that this board are of the opinion that public necessity and convenience require that the stream or watercourse, at West Roxbury, known as the Neponset Avenue branch of Stony Brook, be located anew from Sharon Street to the main channel of Stony Brook near Florence Street, that any parts of the original channel from which said watercourse may be diverted between said points be filled up, and that lands be taken for said purpose," and that at the hearing held in pursuance of this notice those who attended in the plaintiff's behalf "learned . . . that the easement to be taken was to be solely for the relocation of the Neponset Avenue branch of Stony Brook."
Were there anything in this objection the petitioner cannot set it up, since she has accepted the $283 awarded her as compensation for the taking made, and has released the respondent "of and from all claims and demands whatever, for damages, costs, expenses, and compensation for, on account of, or in any way growing out of the relocation of the Neponset Avenue branch of Stony Brook through said parcels of land by an order of the
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board of street commissioners of said city of Boston passed June 27, 1899." By that order the respondent took "the right to maintain said new channel and other sewerage works in" the lands taken.
But there is nothing in the objection. The notice which begins as stated by the petitioner ends with the statement that the board "intend to take the action so required under the provisions of Chapter 426 of the Acts of the Legislature of 1897." The only purpose for which land can be taken under St. 1897, c. 426, is "for sewerage works."
Judgment reversed ; judgment for the respondent.