Jenks v. Mayor of Taunton , 227 Mass. 293 ( 1917 )

De Courcy, J.

By the “.Act to provide the city of Taunton with pure water,” St. 1875, c. 217, the city was authorized “to take and hold the waters of either Taunton River ... or Elders’ and Assowompsett ponds . . . and the waters . . . which flow into said ponds, together with any water rights connected therewith.” It seems clear from the context, and from the location and water sheds of the river and the ponds, that "either” was used in the sense of one of two alternatives. The city could take the waters of one or the other of two sources of supply. It could not take both:

Under the authority of this statute the city in 1876 established and put into operation a system of waterworks. It constructed a filter basin and pumping station within the city limits and obtained its supply of water for domestic, fire, manufacturing and other purposes from the Taunton River. In our opinion this election ended its right to take the waters of said ponds and “such land around the margin of said ponds, not exceeding five rods in width, as may be necessary for the preservation and purity of said waters.” Middleborough v. Taunton, 203 Mass. 31, 33.

In 1892 the water commissioners recommended that the city abandon the Taunton River as a source of water supply and take the waters of Elder’s and Assowompsett ponds; and the city council duly adopted an order in April of that year authorizing the commissioners to carry out these recommendations. During the year a pipe line from Elder’s Pond to the pumping station in the city of Taunton was under construction; and orders were passed purporting among other things to take certain lands on and near Elder’s Pond. These orders of April and August, 1892, referred to said statute of 1875 as authority for the action of the city council.

After this, namely in June, 1893, was passed the “Act to ratify and establish the authority of the city of Taunton to take and hold the waters of Elder’s Pond and Assowompset Pond in Lake-ville and Middleborough.” St. 1893, c. 402. The first section of the act ratifies, grants and confirms the authority of the city “to take and hold the waters” of the two ponds “and the waters flowing into said ponds, together with any water rights connected therewith.” The only mention of land is contained in § 2; by which section the proceedings of the city or of its city council above referred to, including those “relating to . . . the taking and holding of lands in and about said ponds or elsewhere,” are ratified, confirmed and declared valid. Neither expressly nor by reference does the 1893 statute give the city power to take “land around the margin of said ponds, not exceeding five rods in width,” as did the 1875 act. Such a power to take private property without the consent of the owner is not to be inferred from vague general language like that contained in this act. If the Legislature intended to delegate that power to the city, presumably it would have done so in express terms or by necessary implication. Comiskey v. Lynn, 226 Mass. 210. Bishop v. North Adams Fire District, 167 Mass. 364, 369. Cooley, Const. Lim. (7th ed.) 565.

We find no authority in either of said water acts for the purported taking of the petitioner’s land by the city of Taunton in December, 1916. It is conceded that the city has not obtained the consent and approval of the State department of health to the taking of the land in question. St. 1908, c. 499. St. 1914, c. 792. It further is argued that the order of the municipal council was invalid on other grounds; but these need not be considered, as the statute under which the city acted did not authorize them to take the petitioner’s land.

In order to test the validity of the attempted taking the petitioner has brought a petition for a writ of certiorari and a bill in equity. It follows from what we have said that the writ of certiorari must be issued, and the taking by the respondents quashed. Old Colony Railroad v. Fall River, 147 Mass. 455. N. Ward Co. v. Street Commissioners, 217 Mass. 381. Excelsior Needle Co. v. City Council of Springfield, 221 Mass. 34. The bill in equity may be dismissed without prejudice.

Ordered accordingly.