Driscoll v. City of Taunton

Lathrop, J. 1. The first question in this case arises on the motion to dismiss the petition on the ground that the Superior Court had no jurisdiction of the matter. This question is also raised by a request for a ruling. It was the duty of the board of health, if in its opinion any damages were sustained by the petitioner, to estimate such damages. Pub. Sts. c. 80, § 30. Its return, therefore, under | 33, to the city clerk, which mentioned no damages, must be taken as a determination on its part that no damages were sus [493] tained. Monagle v. County Commissioners, 8 Cush. 360. See also North Reading v. County Commissioners, 7 Gray, 109, 112; Hildreth v. Lowell, 11 Gray, 345, 352; Hamlin v. New Bedford, 143 Mass. 192. The present petition is, therefore, in the nature of an appeal from an award of the board of health; and the question is whether the petition can be brought in the Superior Court. Section 35 of the Pub. Sts. c. 80, is as follows: “ Any person aggrieved by the decision of the board, health officer, or commissioners, in their estimate and award of damages, may make complaint to the county commissioners for the county at any time within one year after the return to the city or town clerk; whereupon the same proceedings shall be had as in cases where persons or parties are aggrieved by the award of damages by selectmen for land taken for a town way.” This section is a re-enactment of the St. of 1868, c. 160, § 8, and it is manifest that after the passage of the St. of 1873, c. 261, § 1, and before the passage of the Public Statutes, a person aggrieved had a right to a trial by a jury in the Superior Court. And we are of opinion that the fact that § 8 of the St. of 1868 has been retained in the Public Statutes without change does not prevent a resort to the provisions of the Pub. Sts. c. 49, § 105, in which the St. of 1873 is incorporated. See Grimshaw v. Fall River, ante, 483. 2. The measure of damages was correctly stated to the jury. It was the difference between the fair market value of the land before the act of the board of health and such value afterwards. Moulton v. Newburyport Water Co. 137 Mass. 163, 167. See also Providence & Worcester Railroad v. Worcester, 155 Mass. 35. The jury were carefully instructed that any nuisance on the petitioner’s own land, in order to be chargeable to the respondent, must be the result of the act of the board of health, and that unless the construction resulted in a nuisance, the evidence of a subsequent nuisance was immaterial. The respondent contends that a view which was taken by the jury furnished opportunity to them to infer neglect in maintaining the drain; but we see no evidence in the bill of exceptions tending to show neglect on the part of the board of health, or that any such contention was made by the petitioner. There was a dispute [494] between the parties as to whether the drain brought sewage and foul odors upon the petitioner’s land, but we find nothing in the exceptions to show that this was caused by any neglect on the part of the board in maintaining the drain, in distinction from its original construction. The instruction requested was, therefore, properly refused. 3. The remaining questions arise on the refusal of the court to give the third and fourth requests for instructions. The ground upon which a person who is injured by the exercise of the right of eminent domain, or of a right akin to it, is precluded from recovering his damages on account of what he has said or done, is frequently spoken of in the reports as resting in waiver. Fuller v. County Commissioners, 15 Pick. 81. Seymour v. Carter, 2 Met. 520. Hildreth v. Lowell, 11 Gray, 345, 352. Bell v. Boston, 101 Mass. 506, 510. But in all the cases to which our attention has been drawn there has been either an agreement founded upon a valuable consideration, or the act relied upon as a waiver has been of such a kind as to estop a person from insisting upon the claim given him by law. Thus in Seymour v. Carter, ubi supra, which was a petition for a jury to assess damages caused by the flowing of the petitioner’s land by the respondent’s dam, there was evidence that the petitioner urged the building of the dam, and promised that, if it should overflow his land, he would not ask any damages. This evidence was held to be competent, on the ground stated by Chief Justice Shaw as follows: “ For the promise thus made not to claim damage, there is a good and legal consideration. There is promise for promise, on which the builder of the mill relies, and incurs expense in the execution of his part of the agreement.” So, in Smith v. Goulding, 6 Cush. 154, there was a paroi agreement not to claim damages, in pursuance of which a dam was erected. See also Crocket v. Boston, 5 Cush. 182; Mitchell v. Bridgewater, 10 Cush. 411; Brown v. Worcester, 13 Gray, 31, 36 ; Haskell v. New Bedford, 108 Mass. 208, 213, 214 ; Griffin v. Lawrence, 135 Mass. 365. The questions in the case were whether any agreement was made by the petitioner with the board of health, if one was made what it was, and whether the petitioner by his conduct or silence was estopped from claiming damages. [495] While there was evidence in support of the respondent’s contention, this was contradicted by the petitioner. There was evidence given by witnesses called by both parties, that at the hearing before the board of health the statement of the petitioner that he should claim no damages was not an absolute one, but was qualified by the words “ if the board of health put a stone drain under ground through his premises.” There was also evidence that the petitioner did not remain passive while the drain was being dug, but objected on the ground that it was not being put under ground. The petitioner also denied making statements to persons in charge of the work, and acting for the board of health, which had been testified to, to the effect that he should make no claim for damages if an open drain were dug. It appeared that during the course of the work the course of the drain was changed, as the respondent contended, at the request of the petitioner; but this he denied. On this state of the evidence, the respondent asked that the third and fourth requests for instructions be given. The only criticism which the respondent makes in his brief as to the refusal to give the third instruction is, that the element of estoppel was added in the charge, and that no reference was made by the judge to the effect of statements made by the petitioner to third persons. We are of opinion, for the reasons above stated, that the element of estoppel was properly added; and, as there was no evidence that any statements were made to any persons other than those acting for the board of health, the subject was sufficiently covered by referring to statements made to the board of health. There is also this further objection to the third request. A statement that a person will claim no damages is not necessarily evidence that he has suffered no damages beyond the benefits accruing from the act, nor an admission that he had no claim for damages at the time of making the statement. It may be rather an assertion .of a wrong sustained, coupled with a statement that he will not seek redress for the wrong. The respondent in its brief makes no specific objection to the refusal of the court to give the fourth request for instructions. It is covered generally by what we have said as to the third request, and the instructions given cover more fully the questions in issue than the request does. Exceptions overruled.