Eastern Edison Co. v. Barrett

494 N.E.2d 24, 22 Mass. App. Ct. 357, 1986 Mass. App. LEXIS 1640
CourtMassachusetts Appeals Court
DecidedJune 12, 1986
StatusPublished
Cited by3 cases

This text of 494 N.E.2d 24 (Eastern Edison Co. v. Barrett) 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
Eastern Edison Co. v. Barrett, 494 N.E.2d 24, 22 Mass. App. Ct. 357, 1986 Mass. App. LEXIS 1640 (Mass. Ct. App. 1986).

Opinion

Cutter, J.

This case is before us on a statement of agreed facts and a report by a Superior Court judge, without decision, see G. L. c. 231, § 111; Mass.R.Civ.P. 64, 365 Mass. 831-832 (1974), of the issue whether the plantiff (Eastern) is entitled to compensation for its costs in making possible the movement of Barrett’s house along a highway in Fall River. Eastern is an electric utility (see G. L. c. 164) which provides electric service in the Fall River area. To move Barrett’s house required that Eastern “de-energize . . . disconnect, remove[,] and replace certain of its high voltage lines (440 volts or greater).” Before doing any of this work, Eastern required that Barrett [358]*358pay a deposit of $6,000 and execute a written agreement1 to reimburse Eastern for specific costs.

This action was initiated by Eastern on August 15, 1983, to obtain a declaration (G. L. c. 231 A) whether Eastern was entitled to receive from Barrett the expense caused to Eastern with respect to moving Barrett’s house. This expense, so Eastern claimed, amounted to $19,388.70 in addition to the $6,000 deposit.2

The trial judge recited essentially the facts outlined above. He then stated the question for determination as follows:

“Is an electric utility entitled to . . . reimbursement for the cost of protecting, de-energizing[,] and temporarily relocating overhead high voltage lines under” G. L. c. 166, §§ 21A, 21B, 21E, and 21F, “to accommodate the moving of a building or is payment precluded by” G. L. c. 166, § 39, and related statutes?

We answer that such an electric utility is not entitled, in the circumstances, to any such reimbursement. Relevant statutory sections are set out in the appendix to this opinion, together with some legislative history. See also for legislative history of relevant statutes, Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 87-91 (1968); Shrewsbury v. Munro, 2 Mass. App. Ct. 362, 365-368 (1974). See also Casey v. Massachusetts Elec. Co., 392 Mass. 876 (1984).

The earliest predecessor of § 39, St. 1869, c. 141, § 1, was first codified in Pub. Sts. c. 109, § 17 (1882). Although the original coverage of the section applied only to telegraph com-[359]*359parties, the present successor, G. L. c. 166, § 39 (see Appendix), has a much broader coverage because the methods of transmission of electricity have assumed new forms and have been carried on with increasing voltages by other types of companies. The circumstance that c. 166, § 39, now must be read with § 38 (which in turn refers to § 21) is strong indication that § 39 was intended to apply to all the types of companies and their transmission wires, lines, and conductors mentioned in § 21, and related sections. The term “conductor” as used in c. 166, §§ 21-21G, certainly includes “wires” if, indeed, the terms are not essentially synonymous (see The American Heritage Dictionary, 307, 1385 [2d College ed. 1982]), in their application to the transmission of electricity. See Casey v. Massachusetts Elec. Co., 392 Mass, at 880 n.5.3 See also Shrewsbury v. Munro, 2 Mass. App. Ct. at 364 & n.2.

No provision of c. 166, §§ 21A-21G, authorizes the imposition of any charge by an electric company for moving its wires (or for “de-energizing” them) to facilitate the moving of a house. We are of opinion that the Legislature intended no grant of authority to a company to impose such a charge, and that the matter was left to be covered by § 39, which does not permit any such charge. See last sentence of § 39, as quoted in the Appendix. The provisions of §§ 21A-21G we regard as essentially safety provisions. This is indicated by all the legislative background mentioned in the Appendix to this opinion.

[360]*360We perceive nothing in the Casey case, 392 Mass, at 876, to require a different result. That case decides only that § 39 does not require the company (whose wires must be removed without charge to the house mover) to pay the cost of removing any poles. There is no showing on the present record of any necessity for the removal of any poles or other supports for Eastern’s high voltage lines. Poles outside the traveled part of the highway usually do not “incommode the public use of public ways” (see c. 166, § 21, as appearing in St. 1951, c. 476, § 1), and the Casey case rests upon a strict application of the language of § 39. High voltage wires (as distinguished from poles or other supports) across or close to a highway, however, may seriously obstruct and endanger the public use of the highway for moving large objects.

We hold that the word “negotiated” in § 21E (see note 3, supra, and the appendix) contains no suggestion that the section was designed to afford the operating electric company a chance by negotiations to impose a charge for making it safe to move a house along the highway. As already stated, the section was a part of statutory changes intended only as safety regulations. We think also that par. 7 of the agreement (see note 1, supra) adequately protects Barrett from the imposition of any charge by Eastern (by reason of the agreement) for its costs in making it safe to move his house. Such a charge would be against the public policy disclosed by § 39.

As is apparent from the foregoing discussion the reported question is answered that an electric utility is not entitled to reimbursement in the circumstances appearing in this record. The case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

[361]*361Appendix.

CERTAIN RELEVANT SECTIONS OF G. L. c. 166

Section 39 reads:

“Whenever, in order to move a building ... a person desires that the wires of any such company be cut, disconnected or removed, the company shall forthwith cut, disconnect or remove the same, if the person desiring this to be done has first left a written statement, signed by himself, of the time when, and the place, described by reference to the crossings of streets or highways, where he wishes to remove said wires, at the office of the company in the city . . . where such place is situated, seven days before the time so stated, or, if there is no such office, if he has deposited such statement in the post office, postage prepaid, and directed to the company at its office nearest to said place, ten days before the time mentioned in said statement. If the company neglects or refuses to cut, disconnect or remove wires, as hereinbefore provided, the inspector of wires . . . may cause the same to be cut, disconnected or removed, and the city . . . may recover of the company in contract the expense of so doing.” (Emphasis supplied.)

This section was most recently amended by St. 1958, c. 130. The emphasized words “any such company” in § 39 apply to the companies mentioned in § 38, which mentions street railway companies and electric railroad companies, and “any company, owner, or association described in” § 21.

Section 21, as appearing in St. 1951, c. 476, § 1, provides in part:

“A company incorporated for the transmission of intelligence by electricity or by telephone, whether by electricity or otherwise, . . .

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sundquist Homes, Inc. v. Snohomish County Public Utility District No. 1
965 P.2d 1148 (Court of Appeals of Washington, 1998)
Horgan v. Massachusetts Electric Co.
1992 Mass. App. Div. 124 (Mass. Dist. Ct., App. Div., 1992)

Cite This Page — Counsel Stack

Bluebook (online)
494 N.E.2d 24, 22 Mass. App. Ct. 357, 1986 Mass. App. LEXIS 1640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eastern-edison-co-v-barrett-massappct-1986.