Warren v. Spencer Water Co. , 143 Mass. 9 ( 1886 )

Field, J,

The defendant, on November 23, 1882, filed in the registry of deeds for the county of Worcester a plan, with a declaration thereon. The plan purports to show the location of the “ pipe line,” and the declaration is, that the company “ has taken, for the purpose of laying its main pipes, the lands of ” certain persons who are named, “ which lands are described as on the' above plan.” The plan shows the courses and distances of the line through tracts of land which are marked with the names of the supposed owners, the plaintiff’s land being marked with the name of Horace Warren, her husband. Neither the point on Shaw Pond where the line begins, nor the other terminus of the line, nor the point where the line crosses the respective boundaries of the land of the persons named, is defined with reference to monuments or distances from monuments. The width of the line is not defined, although the plan has on it, “ 14 inch pipe from pond to Main Street,” &c., which includes the pipe through the plaintiff’s land. There is no declaration on the plan that the waters of any pond, brook, or river have been taken.

We are of opinion that this location is invalid. The description is not “sufficiently accurate for identification,” within the St. of 1882, c. 119. We do not see how the line of the location can be ascertained from the plan and description, except, possibly, by a very complicated process of computation, from the size and shape of the different lots, that a line of a certain length and running a certain course must cut the respective boundaries of the lots at certain points. It was the intention of the statute that the company should file a description of the land taken so accurate that the landowners could ascertain from it the situation and boundaries of the part of their land which had been taken; and this, we think, has not been done. See Wilson v. Lynn, 119 Mass. 174; Wamesit Power Co. v. Allen, 120 Mass. 352 ; Housatonic Railroad v. Lee & Hudson Railroad, 118 Mass. 391.

As the location was invalid, the plaintiff’s proper remedy for the acts of the defendant was an action of tort. It may be that, if the plaintiff had filed her petition to have her damages assessed under the St. of 1882, the defendant, if it had actually laid its pipes through the plaintiff’s land, would have been estopped to deny that the description which it filed was valid, and that it had acted under this statute; but, if such an equitable estoppel could be invoked, it would be only against the company and in favor of a landowner who had filed his petition in accordance with the statute. It may also be true, that a petitioner, who had recovered final judgment upon the merits of his petition, would, by that judgment, be barred from maintaining an action for the same damages, or for any damages which could have been recovered under his petition. But it may well be doubted whether the case at bar resembles those cases where the plaintiff may elect to avoid or affirm a contract, or to ratify or disavow an act done on his behalf, and where the institution of a suit which necessarily implies that the contract is affirmed or the act ratified, if the suit is brought with full knowledge of all the material facts, is held to be a waiver of the right to avoid the contract, or to disavow the act, and defeats an action subsequently brought on these grounds.

In Butler v. Hildreth, 5 Met. 49, 52, the court say: “ The case where a party is not barred, by a judgment of nonsuit, from having a new action, is where he has either mistaken his remedy, and brought an action which he could not maintain; or where he has two collateral, independent remedies, in which an assertion of one is not repugnant to the existence of the other.” See Sears v. Carrier, 4 Allen, 339; Connihan v. Thompson, 111 Mass. 270. If this plaintiff had elected to proceed under the statute, and had filed her petition, this election would not make the taking by the defendant valid for all purposes. She could not waive,, in behalf of the defendant, its neglect to comply with the requirements of the statute, and thereby put the defendant in the same position as if it had obeyed the commands of the Legislature.

But it is unnecessary to determine whether, if the petition to the Superior Court had been brought in her name, it would have defeated this action. It was brought in the name of her husband, and, as he had no title to the land, could not have been maintained. It is suggested that she could have been made the party plaintiff by amendment in the Superior Court, but this is doubtful, and, in fact, she never asked for leave to make any such amendment; and no such amendment was ever made.

The intention that this petition should have been brought in her name, or should be prosecuted for her benefit, is not, under any view of the law, such a decisive act as to bar the plaintiff from proceeding according to her real rights. The instruction upon the question of waiver was sufficiently favorable to the defendant.

Exceptions overruled.