City of Newton v. Perry

39 N.E. 1032, 163 Mass. 319, 1895 Mass. LEXIS 101

• Court: Massachusetts Supreme Judicial Court
• Decided: March 6, 1895
• Status: Published

Opinion

Holmes, J.

There are no sacramental words which must be used in a statutory power to take and hold lands in order to give a right to take the lands in fee. Any language in the statute which makes its meaning clear is sufficient, and a very little more than “take and hold” has been held enough. Dingley v. Boston, 100 Mass. 544. Page v. O'Toole, 144 Mass. 303. In Titus v. Boston, 161 Mass. 209, “ take in fee ” was thought to mean take the lands, and not merely an easement. We assume, in deference to the decisions, that the power to take and hold given by the statutes in this case only authorized the taking of an easement. Harback v. Boston, 10 Cush. 295. Attorney General v. Jamaica Pond Aqueduct, 133 Mass. 361, 365. Conklin v. Old Colony Railroad, 154 Mass. 155. But it is plain from these, as from all the cases, that the purpose of the taking must fix the extent, of the right. The right, whether it be called easement or by any other name, is statutory, and must be construed to be large enough to accomplish all that it is taken to do.

One of the purposes for which the defendants’ land was taken was for the protection of the plaintiff’s water supply. St. 1889, c. 302, § 3. It is too late for the defendants to deny that it was necessary to take the land for that purpose. It has been taken, and they have been paid for it. Whatever rights over the land could be needed for the protection of the water under any circumstances the plaintiff has got; and whatever rights it has, it may exercise at once. It would be an unjust refinement to say that the right is only to do such things from time to time as a court or jury may think necessary then. The whole right is paid for without regard to the probability of its being exercised. Howe v. Weymouth, 148 Mass. 605. Proprietors of Mills v. Randolph, 157 Mass. 345, 353. We are of opinion that, when land is taken for the protection of a water supply, exclusive possession of the surface is or may be necessary in order to get the protection needed, and therefore that the right to such possession is one of the rights taken. See Brainard v. Clapp, 10 Cush. 6; Cassidy v. Old Colony Railroad, 141 Mass. 174, 177.

Decree affirmed.