Baizen v. Board of Public Works

Massachusetts Appeals Court

Baizen v. Board of Public Works

304 N.E.2d 586, 1 Mass. App. Ct. 602

CourtMassachusetts Appeals Court

DecidedDecember 12, 1973

StatusPublished

Cited by1 cases

This text of 304 N.E.2d 586 (Baizen v. Board of Public Works) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baizen v. Board of Public Works, 304 N.E.2d 586, 1 Mass. App. Ct. 602 (Mass. Ct. App. 1973).

Pincite

Opinion

Grant, J.

This is a petition for a writ of mandamus brought by the owners of a parcel of land lying partly in Everett but mostly in Chelsea to compel the board of public works of the city of Everett (board) to supply water service to the entire parcel. The board has appealed from a final judgment that a writ issue as prayed for. The order for judgment recites that the case was heard on the petition and the answer (compare Taylor v. Haverhill, 316 Mass. 380, 381 [1944]) and incorporates by reference therein a plan certified under the provisions of S.J.C. Rule 1:06, 351 Mass. 735.² There is no report of material facts; except for the plan, we have none of the evidence which was before the Superior Court. See G. L. c. 213, § ID; G. L. c. 214, §§ 23 and 24.

The facts made to appear from the pleadings and the plan may be summarized briefly. The parcel in question lies on the northerly side of Dartmouth Street, which is an accepted street on the Everett side of the city line but possibly still a private way on the Chelsea side of the line. It has a frontage of 15.84 feet on Dartmouth Street on the Everett side and a frontage of 164.16 feet (91.2 percent of the total) on the Chelsea side. The portion of the parcel lying in Everett has an area of 315 square feet; the portion in Chelsea an area of approximately 13,443 square feet (97.7 percent of the whole). The petitioners propose to build, entirely on the Chelsea portion of the parcel, a nine unit apartment building. On or about September 30,1971, they made application to the board for water service to their proposed building.³ So far as appears, no water would be used or consumed on the Everett portion of the parcel.

The board has taken the position that it is prohibited by c. 18, § 2, of the Revised Ordinances of the City of Everett (1957)⁴ from granting the requested service and has not [604]*604done so. We believe the answer to the controversy presented by the limited record in this case lies deeper than the ordinance and is to be found in the statutory provisions which have authorized the establishment and operation of Everett’s water system and in those which constitute the city’s charter.⁵

Everett, was set off from Malden and incorporated as a town by St. 1870, c. 66, § 1. The town was authorized by St. 1871, c. 205, § 1, “to lay, construct and maintain, within .. . [its] limits . . . such pipes, aqueducts and structures in connection with the water works or aqueducts of the city of Charlestown, or the towns of Malden, Melrose and Medford, as may be requisite for the purpose of supplying water to the inhabitants of said town of Everett, for the extinguishment of fires and for other purposes” (emphasis supplied).⁶ Everett was chartered as a city by St. 1892, c. 355, § l.⁷ Nothing in the charter effected any change in the quoted provisions of St. 1871, c. 205, § l.⁸

[605]*605It has been said that a statute containing language such as that which has been italicized in said § 1 would prevent Everett from selling water to another municipality. Bailey v. Woburn, 126 Mass. 416, 420 (1879).⁹ It has been held that such language would prevent Everett from supplying water service to private properties located beyond its boundaries. Turners Falls Fire Dist. v. Millers Falls Water Supply Dist. 189 Mass. 263, 264 (1905).¹⁰ The only established exception to the rule of the latter case appears to be one of convenience, one which would permit either Everett or an adjoining municipality to supply all the water requirements of a contiguous complex of buildings in single ownership which straddles the common municipal boundary if the water is delivered to one of the buildings at a point lying within the limits of the supplier. Lawrence v. Methuen, 166 Mass. 206,208-209 (1896). No such situation exists in the present case. On the meager record before us we see no reason for creating a further exception to the rule of the Turners Falls case.

The judgment is reversed, and judgment is to be entered dismissing the petition.

So ordered.

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Grant, J.

This is a petition for a writ of mandamus brought by the owners of a parcel of land lying partly in Everett but mostly in Chelsea to compel the board of public works of the city of Everett (board) to supply water service to the entire parcel. The board has appealed from a final judgment that a writ issue as prayed for. The order for judgment recites that the case was heard on the petition and the answer (compare Taylor v. Haverhill, 316 Mass. 380, 381 [1944]) and incorporates by reference therein a plan certified under the provisions of S.J.C. Rule 1:06, 351 Mass. 735.² There is no report of material facts; except for the plan, we have none of the evidence which was before the Superior Court. See G. L. c. 213, § ID; G. L. c. 214, §§ 23 and 24.

The facts made to appear from the pleadings and the plan may be summarized briefly. The parcel in question lies on the northerly side of Dartmouth Street, which is an accepted street on the Everett side of the city line but possibly still a private way on the Chelsea side of the line. It has a frontage of 15.84 feet on Dartmouth Street on the Everett side and a frontage of 164.16 feet (91.2 percent of the total) on the Chelsea side. The portion of the parcel lying in Everett has an area of 315 square feet; the portion in Chelsea an area of approximately 13,443 square feet (97.7 percent of the whole). The petitioners propose to build, entirely on the Chelsea portion of the parcel, a nine unit apartment building. On or about September 30,1971, they made application to the board for water service to their proposed building.³ So far as appears, no water would be used or consumed on the Everett portion of the parcel.

The board has taken the position that it is prohibited by c. 18, § 2, of the Revised Ordinances of the City of Everett (1957)⁴ from granting the requested service and has not [604]*604done so. We believe the answer to the controversy presented by the limited record in this case lies deeper than the ordinance and is to be found in the statutory provisions which have authorized the establishment and operation of Everett’s water system and in those which constitute the city’s charter.⁵

Everett, was set off from Malden and incorporated as a town by St. 1870, c. 66, § 1. The town was authorized by St. 1871, c. 205, § 1, “to lay, construct and maintain, within .. . [its] limits . . . such pipes, aqueducts and structures in connection with the water works or aqueducts of the city of Charlestown, or the towns of Malden, Melrose and Medford, as may be requisite for the purpose of supplying water to the inhabitants of said town of Everett, for the extinguishment of fires and for other purposes” (emphasis supplied).⁶ Everett was chartered as a city by St. 1892, c. 355, § l.⁷ Nothing in the charter effected any change in the quoted provisions of St. 1871, c. 205, § l.⁸

[605]*605It has been said that a statute containing language such as that which has been italicized in said § 1 would prevent Everett from selling water to another municipality. Bailey v. Woburn, 126 Mass. 416, 420 (1879).⁹ It has been held that such language would prevent Everett from supplying water service to private properties located beyond its boundaries. Turners Falls Fire Dist. v. Millers Falls Water Supply Dist. 189 Mass. 263, 264 (1905).¹⁰ The only established exception to the rule of the latter case appears to be one of convenience, one which would permit either Everett or an adjoining municipality to supply all the water requirements of a contiguous complex of buildings in single ownership which straddles the common municipal boundary if the water is delivered to one of the buildings at a point lying within the limits of the supplier. Lawrence v. Methuen, 166 Mass. 206,208-209 (1896). No such situation exists in the present case. On the meager record before us we see no reason for creating a further exception to the rule of the Turners Falls case.

The judgment is reversed, and judgment is to be entered dismissing the petition.

So ordered.

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304 N.E.2d 586, 1 Mass. App. Ct. 602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baizen-v-board-of-public-works-massappct-1973.

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