Roberts v. City of Cambridge

41 N.E. 230, 164 Mass. 176, 1895 Mass. LEXIS 208

Opinion

Holmes, J.

This is a bill for the specific performance of an alleged contract. The material facts are as follows. The defendant had taken the water of Stony Brook, under St. 1884, c. 256, subject to prior rights given to other towns. See St. 1884, c. 257. Before the damages were assessed, the defendant’s water board passed the following votes, which were communicated to the plaintiff and assented to by him.

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At the hearing before the commissioners on the amount of damages to be paid to the plaintiff by the defendant, these votes were put in evidence, were relied on by the counsel for the defendant, were treated by the commissioners as an agreement by the city, and led the commissioners to eliminate the plaintiff’s claim for damages in respect of water for washing or steam purposes, with the result of lessening the amount of the commissioners’ award. The city paid the award, and for a time supplied the plaintiff with water as agreed. Since then, however, it has neglected and refused to fulfil the contract, to the great inconvenience and expense of the plaintiff.

The defendant objected to evidence of the foregoing facts; but as it does not appear how they were proved, it is to be assumed that they were proved by proper evidence, if the facts, however proved, were competent. There is no question before us of inquiries addressed to a commissioner as to the ground of his decision.

It is objected that no evidence was admissible of the facts because the commissioners were to assess all the damages suffered by the plaintiff, but if there was a binding contract to give the plaintiff a part of the water embraced in the taking, such a contract would have the same effect as a valid exception of the same amount of water from the original taking, and would cut down the damages accordingly. See Morse, petitioner, 18 Pick. 443, 447; Old Colony Railroad v. Miller, 125 Mass. 1, 5; Bicknell v. New York & New England Railroad, 161 Mass. 428; Huston v. Cincinnati & Zanesville Railroad, 21 Ohio St. 235; Mills, Em. Dorn. (2d ed.) §§ 112, 113.

It is found as a fact in the report that the transaction amounted to a contract, a finding warranted by the evidence. The accepted vote purported to be a contract. By the statute and the city ordinance the water board had all the powers of the city under the act. St. 1884, c. 256, § 10. Cambridge Ordinances, 1880, c. 39, § 3. If it should be doubted whether, supposing the city to have had power to make the contract, the power was one of those conferred on the water board, there was evidence of ratification. The city acted in pursuance of the vote by opening the four-inch gate and allowing the plaintiff sufficient water for washing and steam purposes, it argued from it to the commissioners and it paid the award as diminished in consideration of the vote, although no doubt the argument for the city to the commissioners, in part at least, seemed to present the vote rather as affecting the probabilities of all the water being used than as conferring a right. At that time Howe v. Weymouth, 148 Mass. 605, had not been decided.

It is urged that the city had no power to make the contract, and that it could not sell water for any purposes except those public ones mentioned in § 1 of the act, of which this was not one. But we see nothing beyond the power of the city in the vote, and still less anything unlawful. The power to make such a contract with a stranger might be limited to the surplus naturally incident to the taking of water for public use. But this contract was made with one from whom more water was taken at the same time, and therefore in its practical effect merely cut down the amount taken from the plaintiff and to be paid for by the defendant, — a perfectly lawful object.

The city having made a lawful contract to the effect set forth in the vote, there seems to be no reason why the contract should not be specifically enforced according to its legal import. Raphael v. Thames Valley Railway, L. R. 2 Ch. 147. No objection to the jurisdiction is taken in the answer. Massachusetts General Hospital v. State Assurance Co. 4 Gray, 227. The damages, if any, suffered by the plaintiff may be assessed, in order to give him full relief.

Recree accordingly.

The votes are set forth upon page 178.