Carville v. Commonwealth

Knowlton, C. J. The petitioner claims damages under the St. 1895, c. 488, and the amendments thereto, for property taken by the metropolitan water board for the Wachusett reservoir. See Carville v. Commonwealth, 189 Mass. 278. The instrument of taking was recorded on May 20, 1898. The property is an alleged right to use a pond on land formerly belonging to the petitioner’s father, Daniel W. Carville, for the cutting of ice for the market. This land was taken by the instrument referred to, and it was also conveyed by Daniel W. Carville to the Commonwealth by a duly executed deed. There was testimony that at one time Daniel W. Carville gave the petitioner oral permission to cut ice upon the pond, and that afterwards the petitioner erected ice houses, and sold ice from this pond in the market for a series of years. If the petitioner at any time had any right in the pond for which he was entitled to damages he acquired it by adverse use. There is a grave question whether the evidence would warrant a finding that the use was adverse, or other than permissive. But, if we assume that the jury might have found in his favor on this point, his use of the pond had not continued so long as twenty years when the Commonwealth took the property. The dam was not built until the autumn of 1878, nor the ice houses until 1879. His testimony to having worked by odd jobs on the land during the year before did not show an exclusive occupation, nor a use of the land for cutting and taking ice, such as would mark the beginning of an adverse claim as a foundation for the acquisition of a right to take ice. But, if we assume that the plaintiff had acquired a right, it was an easement in gross, or a profit d prendre, which was an [572] interest in the real estate. Goodrich v. Burbank, 12 Allen, 459. French v. Morris, 101 Mass. 68. Amidon v. Harris, 113 Mass. 59. Walker Ice Co. v. American Steel & Wire Co. 185 Mass. 463. Mayor of New York v. Law, 125 N. Y. 380. Poull v. Mockley, 33 Wis. 482. Damage suffered from the taking of real estate or an interest therein, could only be sued for under the St. 1895, c. 488, § 14, as amended by Sts. 1899, e. 342, 1900, c. 108, §§ 1, 2, 1901, c. 498 and 1904, c. 186, “ within two years after the actual taking by right of eminent domain of such real estate or of any interest therein.” The extension of the time for filing petitions under these statutes does not include cases like the present. Whatever be the construction of the term “ actual taking,” the petition was filed too late; for the water was actually withdrawn in January, 1900, and the petition was not filed until October 19, 1903. It therefore becomes unnecessary to consider either the effect of the petitioner’s deed of release to the Commonwealth, covering damages for taking other lands belonging to him under this same instrument of taking and for the taking of his ice houses used with this pond, or the effect of the judgment in favor of the Commonwealth upon his suit for damages to his established business. Judgment on the verdict.