Butchers Slaughtering & Melting Ass'n v. City of Boston

101 N.E. 426, 214 Mass. 254

• Court: Massachusetts Supreme Judicial Court
• Decided: March 31, 1913
• Status: Published

Opinion

Braley, J.

The petitioner’s property, consisting of about fifty acres of land, fronts upon a navigable stream or arm of the sea where the extensive frontage has been improved by the construction of a retaining wall and of two wharves, one of which is occupied by the petitioner for the landing of its own materials and supplies, while the other is leased to a tenant who uses it for the storage and sale of coal. A bridge having been constructed without a draw and opened for public travel below the wharves, the petition is brought to. recover damages for interference with transportation by the restriction which had been imposed on access to the sea. It appears that before the building of the bridge this portion of the stream was navigable by vessels with masts in which large quantities of coal had been shipped for the petitioner’s use, but that since its completion, vessels of that type not being able to pass, the petitioner has been put to the expense of reshipment and sending the cargoes up the river by lighters. By reason of these conditions it claims that the use of the wharf not only has practically ceased but the entire property has been greatly depreciated in value for commercial purposes.

It is settled that at common law the petitioner is remediless. The interruption to free navigation affects the community generally, and even if the petitioner suffers to a greater degree because of an established business, yet the injury in kind does not differ from the injury to other riparian owners or members of the public who may have occasion to use the waterway. Home for Aged Women v. Commonwealth, 202 Mass. 422, 427, 428.

Originally the construction of a bridge with a draw was authorized by the St. of 1898, c. 467. But before the work had been begun the St. of 1899, c. 180, was passed, directing the building of a drawless bridge with the consent of the “United States government,” as the stream at the place of location was navigable water. Manchester v. Massachusetts, 139 U. S. 240. Permission having been granted by Act of Congress, of March 29, 1900, on condition, that the “State of Massachusetts, within a reasonable time after the completion of said bridge, by Legislative enactment, shall provide for adequate compensation to the owner or owners of wharf property now used as such on said river above said bridge, for damages, if any, sustained by said property by reason of interference with access by water to said property now and hitherto enjoyed, because of the construction of said bridge without a draw,” the St. of 1902, c. 464,

* was enacted, giving to the owners of wharf property located above the site the right to bring an action for damages within two years “ after said bridge without a draw has been opened for public travel.” It is to be noticed, however, that this right is not granted in general terms. It is carefully qualified, and while the present petition is properly brought, yet by the express words of the act the petitioner is entitled to damages only for any injury occasioned to “wharf property used as such.”

A legislative grant, whether it be of property or of a right to damages for injury to property resulting from the exercise of the police power, as in the case at bar, is not to be extended by implication in favor of the grantee or the party on whom such right may be bestowed. Commonwealth v. Boston Terminal Co, 185 Mass. 281, 287, 288. Crocker v. Champlin, 202 Mass. 437, 442. By the purview of the statute conditions of user actually existing were alone recognized. It is not improbable, as counsel for the petitioner has argued, that the whole tract has been depreciated, even if the rear land may not have been so seriously affected as the portion nearest to the river or the wharves which extend into the water. The damages however are limited to that part which before the passage of the statute the petitioner had utilized by wharves actually in use when the bridge was built and whose business consequently might be seriously interfered with, if not destroyed, by the restriction imposed on open navigation. Fitchburg Railroad v. Boston & Maine Railroad, 3 Cush. 58. Commonwealth v. Boston Terminal Co. 185 Mass. 281. The construction given to the statute at the trial was therefore correct.

The remaining exceptions relate to the admission of evidence to which the petitioner excepted. The impairment of access, as already stated, constituted the sole element of damage and evidence undoubtedly was admissible showing the number and class of vessels with their cargoes which passed up the river before, as well as after, the erection of the bridge. Prior to its erection there were two bridges below the wharves with draws, in charge of draw tenders, who each kept a daily register of passing vessels and, after the method of keeping the registers had been shown by the respondent, these books, without any discrimination as to their contents, were admitted in evidence. A register kept by a draw tender, even if he is required by the revised ordinances of the city to make certain entries by way of comment in the nature of a ship’s log, is not a public or official document within the meaning of the R. L. c. 35, § 5, certified copies of which may be put in evidence. Allen v. Kidd, 197 Mass. 256, 259. Kennedy v. Doyle, 10 Allen, 161. Bixby v. Franklin Ins. Co. 8 Pick. 86, 89. The exceptions having provided that the books might be referred to, they were produced for our inspection at the argument. While many of the entries, which were made in the regular course of the draw tender’s official duty and classified the vessels and tabulated the names and number, were admissible as the result of his personal observation, if supported by his suppletory oath, if he were living, other entries were merely descriptive of matters not known to the recorder, but which had been reported to him by substitute draw tenders. Kennedy v. Doyle, 10 Allen, 161. Cashin v. New York, New Haven, & Hartford Railroad, 185 Mass. 543, 546. Atlas Shoe Co. v. Bloom, 209 Mass. 563, 569. See St. of 1913, c. 288. It was further disclosed that in some instances statements were entered designating the consignee and the place of destination, with the character of the cargo, which were founded upon information furnished by the captain or members of the crew as a vessel was going through the draw, while some of these entries furthermore did not appear to have been made cotemporaneously with the event, but were entered long afterwards. The registers as thus made up did not prove themselves and should not have been indiscriminately admitted. Allen v. Kidd, 197 Mass. 256. Delaney v. Framingham Gas, Fuel & Power Co. 202 Mass. 359, 366, 367, 368. Atlas Shoe Co. v. Bloom, 209 Mass. 563, 569. P. Garvan, Inc. v. New York Central & Hudson River Railroad, 210 Mass. 275, 279. Wigmore on Ev. §§ 1639-1644. It being impossible to determine how far the incompetent evidence thus placed before the jury may have influenced their verdict, which was for the respondent, there must be a new trial.

Exceptions sustained.

St. 1902, c. 464, § 1, provided in substance that “any owner or owners of wharf property used as such on or before” March 29, 1900, on the Charles River above the drawless bridge above described, should “be entitled to recover damages for any injury occasioned to such property by reason of interference with the access by water thereto, enjoyed on” March 29, 1900, “and theretofore, because of the construction of said bridge without a draw.”