Holmes, J.
This is a petition for a writ of certiorari to quash a judgment in .favor of one Ranlett for water rights taken under the St. of 1882, c. 192.
The respondents’ contention, that the taking is the filing of the description of the rights taken in the registry of deeds, tacitly assumes that the word “ taking ” in the passage just quoted from § 3 has a different meaning from the same word in § 2; an assumption which is not justified. We cannot do better than repeat the words of Mr. Justice Bigelow in Moore v. Boston, 8 Cush. 274, 276: “It is the taking of the land [here, of the water rights] which gives the party injured a right to damages. By [§ 2] the taking of the [water right] and the filing of a description of it in the registry of deeds are two separate and distinct acts. The former must precede the latter. The taking is first to be made, and within [ninety] days after it, the description is to be filed. It is difficult to see how, under this explicit provision, the filing of the description of the [water right] taken can be made the taking itself. The act of taking is to be first accomplished, and after it is done, the evidence of it, in the form of a description, is to be filed in the registry of deeds. Such seems to be the natural import of the language of the statute.”
[265]*265It may be admitted that, if there had been no actual taking, the filing of the description in the registry might conclude the town, and, at least in regard to lands, might fix the date from which the year would begin to run. Moore v. Boston, 8 Cush. 277. Ham v. Salem, 100 Mass. 350, 351. Indeed, the dicta or intimations in Lewis v. Boston, 130 Mass. 339, and Chandler v. Jamaica Pond Aqueduct, 114 Mass. 575, 577, led the counsel for the petitioner partially to concede that the filing would fix the beginning of the year in any case for land. However this may be, we can feel no doubt as to the meaning of the act with regard to water rights, and our construction is confirmed by the further provision in § 3, that “ no assessment for damage shall be made for the taking of any water right .... until the water is actually withdrawn.” See Ipswich Mills v. County Commissioners, 108 Mass. 363, on the St. of 1864, c. 268, § 11; Tileston v. Brookline, 134 Mass. 438.
From the view which we have taken it becomes unimportant whether the description filed on March 8, 1883, was sufficient or not.* For, although the filing may have been a condition subsequent, which the petitioner would have had to show had been complied with if it had been sued in tort and had justified under the statute, as in Wamesit Power Co. v. Allen, 120 Mass. 352, [266]*266and in Lund v. New Bedford, 121 Mass. 286, in this case Ranlett treated the taking as lawful, proceeded under the statute, and was therefore bound to proceed within the statutory time. We may add, that the cases last cited are further authorities to show that the taking and the filing are distinct matters.
But furthermore we are of opinion that the objections made to the description are unsound. It is true that it begins with a “ whereas,” and that, according to the punctuation, there is no conclusion. But, if this be material, it may be remedied by neglecting the periods, and reading the description as the introduction to the statement of the purpose for which the water is taken. The words, “ has taken and appropriated the water above said dam,” cover the water rights below the dam which are interfered with. The only interference with them is the withdrawal of the water described.
A second description was filed on June 16, 1888,* and it is this that the respondents rely upon to make out that Ranlett’s petition was filed in time. But the argument based upon it fails, when it is determined that filing the description is not the taking. To be sure, it might be said that the instrument estopped the town to set up anything inconsistent with its contents. And if the second description had set forth a taking of its date, we might have had to consider whether the powers given by the act [267]*267had been exhausted, and, if not, whether it did not sufficiently appear that the purport of the later instrument was only to correct apprehended defects of form in the earlier one. But the most that can possibly be gathered from the second instrument is that the taking was within ninety days before, while it- also shows that the dam and reservoir by which the water was actually withdrawn were already built by authority of the town at the date of their meeting, March 27, 1883. If therefore the petitioner is estopped by its declarations, which we do not intimate, it can still refer the taking to the earliest point of time consistent with the instrument. The withdrawal of the water has been continuous since December 12, 1882, so that there is no difficulty such as might have been raised by a cessation in the use after the first taking. As Ranlett’s petition was filed the last day of the year following the filing of the second description, it whs too late, unless the taking was on the same day that the description was filed.
G. F. Hoar & W. A. Gile, for the petitioner.
W. S. B. Hopkins & F. P. Goulding, for the respondents.
It is not disputed that the action of the county commissioners was void, if the petition was filed after the year had run. Cambridge v. County Commissioners, 6 Allen, 134, 136.
Certiorari to issue.
Section 2 of this act provides that the town of Northborough “may-take and hold the water, or so much thereof as may be necessary, with the water rights connected therewith,” of certain streams, and may take lands, and erect dams, &c. It further provides that the town “shall within ninety days after the taking of any lands, water sources, or water rights, as aforesaid, otherwise than by purchase, file m the registry of deeds for the county [264]*264of Worcester a description thereof sufficiently accurate for identification, with a statement of the purpose for which the same is taken,” &c.
Section 3 provides that the town “shall be liable to pay all damages sustained by any person or corporation in property by the taking of any land, water source, or water right, or by the construction of any aqueduct, reservoir, or other works.” It further provides that “ any person or corporation injured in property under this act,” and failing to agree with the town as to the amount, may have his damages assessed, “ the application therefor to be made in writing within one year after the taking of such land, water source, or water right, or other injury done as aforesaid, but not thereafter.
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Holmes, J.
This is a petition for a writ of certiorari to quash a judgment in .favor of one Ranlett for water rights taken under the St. of 1882, c. 192.
The respondents’ contention, that the taking is the filing of the description of the rights taken in the registry of deeds, tacitly assumes that the word “ taking ” in the passage just quoted from § 3 has a different meaning from the same word in § 2; an assumption which is not justified. We cannot do better than repeat the words of Mr. Justice Bigelow in Moore v. Boston, 8 Cush. 274, 276: “It is the taking of the land [here, of the water rights] which gives the party injured a right to damages. By [§ 2] the taking of the [water right] and the filing of a description of it in the registry of deeds are two separate and distinct acts. The former must precede the latter. The taking is first to be made, and within [ninety] days after it, the description is to be filed. It is difficult to see how, under this explicit provision, the filing of the description of the [water right] taken can be made the taking itself. The act of taking is to be first accomplished, and after it is done, the evidence of it, in the form of a description, is to be filed in the registry of deeds. Such seems to be the natural import of the language of the statute.”
[265]*265It may be admitted that, if there had been no actual taking, the filing of the description in the registry might conclude the town, and, at least in regard to lands, might fix the date from which the year would begin to run. Moore v. Boston, 8 Cush. 277. Ham v. Salem, 100 Mass. 350, 351. Indeed, the dicta or intimations in Lewis v. Boston, 130 Mass. 339, and Chandler v. Jamaica Pond Aqueduct, 114 Mass. 575, 577, led the counsel for the petitioner partially to concede that the filing would fix the beginning of the year in any case for land. However this may be, we can feel no doubt as to the meaning of the act with regard to water rights, and our construction is confirmed by the further provision in § 3, that “ no assessment for damage shall be made for the taking of any water right .... until the water is actually withdrawn.” See Ipswich Mills v. County Commissioners, 108 Mass. 363, on the St. of 1864, c. 268, § 11; Tileston v. Brookline, 134 Mass. 438.
From the view which we have taken it becomes unimportant whether the description filed on March 8, 1883, was sufficient or not.* For, although the filing may have been a condition subsequent, which the petitioner would have had to show had been complied with if it had been sued in tort and had justified under the statute, as in Wamesit Power Co. v. Allen, 120 Mass. 352, [266]*266and in Lund v. New Bedford, 121 Mass. 286, in this case Ranlett treated the taking as lawful, proceeded under the statute, and was therefore bound to proceed within the statutory time. We may add, that the cases last cited are further authorities to show that the taking and the filing are distinct matters.
But furthermore we are of opinion that the objections made to the description are unsound. It is true that it begins with a “ whereas,” and that, according to the punctuation, there is no conclusion. But, if this be material, it may be remedied by neglecting the periods, and reading the description as the introduction to the statement of the purpose for which the water is taken. The words, “ has taken and appropriated the water above said dam,” cover the water rights below the dam which are interfered with. The only interference with them is the withdrawal of the water described.
A second description was filed on June 16, 1888,* and it is this that the respondents rely upon to make out that Ranlett’s petition was filed in time. But the argument based upon it fails, when it is determined that filing the description is not the taking. To be sure, it might be said that the instrument estopped the town to set up anything inconsistent with its contents. And if the second description had set forth a taking of its date, we might have had to consider whether the powers given by the act [267]*267had been exhausted, and, if not, whether it did not sufficiently appear that the purport of the later instrument was only to correct apprehended defects of form in the earlier one. But the most that can possibly be gathered from the second instrument is that the taking was within ninety days before, while it- also shows that the dam and reservoir by which the water was actually withdrawn were already built by authority of the town at the date of their meeting, March 27, 1883. If therefore the petitioner is estopped by its declarations, which we do not intimate, it can still refer the taking to the earliest point of time consistent with the instrument. The withdrawal of the water has been continuous since December 12, 1882, so that there is no difficulty such as might have been raised by a cessation in the use after the first taking. As Ranlett’s petition was filed the last day of the year following the filing of the second description, it whs too late, unless the taking was on the same day that the description was filed.
G. F. Hoar & W. A. Gile, for the petitioner.
W. S. B. Hopkins & F. P. Goulding, for the respondents.
It is not disputed that the action of the county commissioners was void, if the petition was filed after the year had run. Cambridge v. County Commissioners, 6 Allen, 134, 136.
Certiorari to issue.
Section 2 of this act provides that the town of Northborough “may-take and hold the water, or so much thereof as may be necessary, with the water rights connected therewith,” of certain streams, and may take lands, and erect dams, &c. It further provides that the town “shall within ninety days after the taking of any lands, water sources, or water rights, as aforesaid, otherwise than by purchase, file m the registry of deeds for the county [264]*264of Worcester a description thereof sufficiently accurate for identification, with a statement of the purpose for which the same is taken,” &c.
Section 3 provides that the town “shall be liable to pay all damages sustained by any person or corporation in property by the taking of any land, water source, or water right, or by the construction of any aqueduct, reservoir, or other works.” It further provides that “ any person or corporation injured in property under this act,” and failing to agree with the town as to the amount, may have his damages assessed, “ the application therefor to be made in writing within one year after the taking of such land, water source, or water right, or other injury done as aforesaid, but not thereafter. No assessment for damage shall be made for the taking of any water right, or for any injury thereto, until the water is actually withdrawn or diverted by said town under the authority of this act.”