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to see that the defendants can be properly regarded as a corporation of this character. No public duty is imposed upon them nor are they charged with any public trust. They are authorized to make and distribute gas for their own benefit and gain only. They are not bound to sell and dispose of it to any one either for public or private use or consumption. Nor is any power conferred upon them to take private property, not previously appropriated to a public use, for the purpose of exercising and enjoying their franchise."
The petitioner in this case is making a public use of property obtained by right of eminent domain. It cannot unreasonably refuse to furnish water to an applicant. Turner v. Revere Water Co., 171 Mass. 329, 50 N. E. 634, 40 L. R. A. 657, 68 Am. St. Rep. 432. It is administering a public trust just as the town of Milford would be administering the same trust, should it exercise its right to purchase the property. There is no express statute subjecting land so used to taxation. Under the principles laid down in the cases hereinbefore cited, the provisions of the general tax acts do not apply. The land is therefore exempt from taxation, and that is so even if some or all of the land was acquired by purchase. It is not material whether the land be taken under statutory proceedings. If it could have been so taken, and by an agreement between the corporation and the landowner these proceedings are dispensed with and the title is conveyed by deed to the corporation, the land so far as material to the question before us is to be regarded as if taken by right of eminent domain. is true that under this decision the petitioner is left in a more favorable position as to taxation than that in which a town using land for a similar purpose is left under Rev. Laws, c. 12, § 10, and more favorable also than that of an aqueduct company, incorporated under the general laws, which cannot take property by right of eminent domain. If this rule of law affects the public interest unfavorably the Legislature can provide a remedy.
It is argued by the respondent that the question whether the property is exempt is not open upon this petition. The petition is plainly brought under Rev. Laws, c. 12, § 73. This section provides that the assessors, if they find that the applicant for abatement is taxed "at more than his just proportion or upon an assessment of any of his property in excess of its fair cash value," may make a reasonable abatement. While it is true that the language of this section gives some support to the idea that the assessors acting under it cannot wholly abate a tax, and while the person taxed, upon paying the tax under protest, may maintain an action of contract to recover it back, or perhaps successfully defend against any proceedings brought
for its collection (see Harrington v. Glidden, 179 Mass. 486, 61 N. E. 54, 94 Am. St. Rep. 613, and cases therein cited), still we see no reason why the statute may not be broad enough to cover a case like this. There are obvious public reasons why it is better that questions like this should be settled by the assessors upon petition for abatement, not the least potent of which is that the applicant for an abatement must first make to the assessors a sworn statement of his property liable to taxation. Again, it is more convenient for the applicant that the question whether he is liable at all, and, if so, to what extent, should be settled in one proceeding. In view of the history of the legislation we can have no doubt that it was the intention of the Legislature by this proceeding to make provision for the settlement of the question of the validity of the whole or any portion of the tax. The petition follows the language of the statute, and is broad enough to justify any action proper under the statute.
It is further argued that by including in its list to the assessors this land as taxable property the petitioner is now estopped to set up the claim that it is not taxable. But this position is untenable. Dunnell Mfg. Co. v. Pawtucket, 7 Gray, 277; Charlestown v. County Com'rs, 109 Mass. 270; Moors v. Street Com'rs, 134 Mass. 431.
It becomes unnecessary to discuss the other exceptions raised upon this record. Exceptions sustained.
(192 Mass. 244)
MITCHELL v. BICKFORD et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1906.) QUIETING TITLE-UNDISCHARGED MORTGAGESCOPE OF STATUTE.
Rev. Laws, c. 182, § 15, declaring that if the record title to land is incumbered by an undischarged mortgage, and the mortgagor or his successors have been in uninterrupted possession for 20 years after the expiration of the time limited in the mortgage for the full performance of the condition thereof, and no evidence is offered that there has been a payment on account of the mortgage debt, or any other recognition of its existence within the 20 years, the mortgagor may have a decree reciting these facts, which, when recorded within 30 days after its entry, shall prevent the enforcement of the mortgage, is intended to provide for the removal of a cloud from a record title incumbered by an undischarged mortgage, and if the conditions stated in the statute are shown to exist the mortgagor is entitled to a decree which is an absolute bar to all claims under the mortgage.
Exceptions from Land Court, Suffolk County; C. T. Davis, Judge.
Petition by one Mitchell against one Bickford and others. There was a decree for petitioner, and respondents bring exceptions. Exceptions overruled.
Benj. B. Dewing, for petitioner. Hamilton & Eaton, Herbert R. Morse, and Albin L, Richards, for defendants.
KNOWLTON, C. J. This is a petition brought under Rev. Laws, c. 182, § 15. This section, originally enacted as St. 1882, p. 185, c. 237, was entitled "An act relating to the settlement of titles to real estate." As it now appears with additions and amendments in the Revised Laws, it gives one whose record title to land is incumbered by an undischarged mortgage a right to have his title perfected if certain facts appear. If he has been in interrupted possession of the land for 20 years after the expiration of the time limited in the mortgage for the full performance of the condition thereof, and if, at a hearing upon his petition, after due notice, this fact appears, and no evidence is offered of a payment on account of the debt secured by the mortgage within 20 years after the expiration of the time limited for the performance of the condition, or of any other act within said time in recognition of its existence as a valid mortgage, he may have a decree entered reciting these facts. This decree may be recorded in the registry of deeds within 30 days after its entry, and it then becomes a bar to the maintenance of an action to enforce a title under the mortgage. At the common law, possession of mortgaged premises by the mortgagor and those claiming under him for 20 years, without recognition of the mortgage or of a debt secured by it, is presumptive proof of payment of the mortgage. In Cheever v. Perley, 11 Allen, 584, it is said that, to rebut the presumption of payment, "some positive act of unequivocal recognition, like part payment, or a written admission, or at least a clear and well identified verbal promise or admission intelligently made within the period of 20 years, is required." See Kellogg v. Dickinson, 147 Mass. 432, 18 N. E. 223, 1 L. R. A. 346. In Brintnall v. Graves, 168 Mass. 384-387, 47 N. E. 119, the question was raised whether under this statute the court could properly enter a decree for the petitioner in any case in which it appeared that there was a valid mortgage the condition of which had not been performed. Without deciding it, the court said: "There is much force in the argument that the object of the statute is merely to provide for the re moval of a cloud from the record title of the real estate, when it is incumbered by an undischarged mortgage which is not shown to be in force, and which has not been recognized by the mortgagor, by payment or otherwise, within 20 years after the time limited in it for the full performance of the condition thereof."
We are of opinion that the object of the statute is to provide for the removal of such a cloud, and to make 20 years' possession by the mortgagor without recognition of the mortgage, if availed of in these proceedings, an absolute statutory bar to all claims under the mortgage. If the conditions stated in the statute are shown at the hearing the decree is to be entered. The statute has
been construed liberally whenever it has been before the court. Short v. Caldwell, 155 Mass. 57, 28 N. E. 1124; Tarbell, Petr., 160 Mass. 407, 36 N. E. 55; Brintnall v. Graves, 168 Mass. 384-387, 47 N. E. 119.
In the present case the petitioner showed his record title, the incumbrance by an undischarged mortgage, and his possession for 20 years without payment upon the mortgage or recognition of it in any way. These facts bring him within the statute and entitle him to a decree.
We do not intimate that, upon the facts appearing, he would not be entitled to have his estate relieved from the mortgage under other provisions of law. But it is enough for this case that it is within the statute relied on.
Where, in a suit to enforce a mechanic's lien, the parties agreed to the answer of the jury as to the amount due the petitioner for labor and materials in response to the issue, "What amount * is due the petitioner for labor performed and materials furnished?" a decree for petitioner was warranted, as against the claim that the petitioner abandoned his contract; the answer being inconsistent with an abandonment.
Exceptions from Superior Court, Middlesex County; Henry N. Sheldon, Judge.
Petition to enforce a mechanic's lien by one Rochford against one Rochford and others. There was a decree for petitioner, and certain of the defendants except. Exceptions overruled.
David Benshimol, for petitioner. Bert E. Kemp, for defendants.
MORTON, J. This is a petition to enforce a mechanic's lien for labor and materials under an entire contract. Issues were framed for a jury and the case was then sent to an auditor. After the auditor reported the case was submitted to a jury upon the issues which had been framed. By direction of the court the jury answered the first issue in the negative which was in the petitioner's favor. No question is raised, however, as to the correctness of that ruling. The parties agreed upon the answers to all the remaining issues, except nine and ten, the last two, and the case went to the jury on those two issues both of which were answered in the negative and in favor of
the petitioner. was entered in favor of the petitioner. Exceptions were taken by the respondents Atkins and Clark which were sustained. See Rochford v. Rochford, 188 Mass. 108, 74 N. E. 299, which it is agreed in the exceptions may be referred to and where the issues that were framed appear. The case went back to the superior court and that court "upon consideration of the findings of the jury, the facts as reported by the auditor so far as applicable to the issues raised by the pleadings which are not technically covered by the findings of the jury, neither party offering any other evidence," entered a decree establishing the lien, subject to the mortgage, for the amount for which it had been previously established. The respondents Atkins and Clark objected to the entry of the decree, and contended that the plaintiff had abandoned his contract, but the court ruled that on the face of the record a decree could be entered for the plaintiff and entered the above decree. The case is here on exceptions by the respondents Atkins and Clark to the entry of the decree. The respondents contend that the contract was abandoned by the petitioner. This is their only contention. If the plaintiff willfully abandoned his contract and broke it without any excuse he is not entitled to recover and cannot maintain his petition. General Fire Extinguisher Co. v. Chaplin,183 Mass. 375, 67 N. E. 321. But no issue was submitted to the jury on this point and it appears that the parties agreed to the answers by the jury to all of the issues except the first and ninth and tenth. The fifth issue was "What amount if any thing is due the petitioner for labor performed and materials furnished on the house on said premises under said contract?" and the answer was $917.46. This answer was inconsistent with an abandonment of the contract and even if the question of abandonment was properly raised and the auditor's report contained evidence in relation to it, it cannot be said in view of the answer of the jury to the fifth issue that the decree in favor of the petitioner was unwarranted, and that the ruling of the court that on the face of the record he could give the plaintiff a decree was wrong.
Thereafterwards a decree
(192 Mass. 226)
CLARK et al. v. BAKER. (Supreme Judicial Court of Massachusetts. Middlesex. June 20, 1906.)
1. REFERENCE-AUDITOR-VIEW - DISCRETION OF COURT.
Where an auditor reported to the court that in his opinion a view was necessary to a decision of the case, and that it should be taken before the evidence was introduced, it was within the discretion of the court to authorize the auditor to take a view.
[Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Reference, § 93.]
2. JURY-DEMAND FOR JURY-WAIVER.
Plaintiff duly filed a claim for a jury. An auditor was appointed. Subsequently plaintiff filed a waiver of a jury trial. Ten days thereafter, defendant filed motions for the restoration of the case to the jury list and for leave to file a claim for a jury. Held that, as the court might have been of the opinion that defendant had no intention of claiming a jury trial originally and that his purpose in making the motions was to delay and obstruct plaintiff, the motions were properly denied, and the question as to the effect of a withdrawal by plaintiff of a claim to a jury trial did not arise. 3. SAME-SUFFICIENCY OF DEMAND.
Where a defendant has defaulted and the cause is heard only on the question of the assessment of damages, it is necessary for defendant, if desiring the assessment to be made by a jury, to make a motion specifically addressed to the assessment of damages after the default. [Ed. Note.-For cases in point, see vol. 31, Cent. Dig. Jury, §§ 154-173.]
Appeal from Superior Court, Middlesex County.
Action by one Clark and others against one Baker for damages for breach of a building contract. There was a finding for plaintiffs and defendant appeals. Judgment on finding.
Wm. H. Baker and Jos. G. Wright, for appellant. E. R. Thayer, and C. Hunneman, for appellees.
MORTON, J. This case comes here on appeal by the defendant from a ruling in the superior court allowing the auditor, on motion of the plaintiff, to take a view, after he had reported to the court that in his opinion a view was necessary to a just decision of the case, and that it should be taken before the evidence was introduced, and also on appeals from rulings denying her motion that the case should be restored to the jury list after it had been stricken therefrom in consequence of a waiver by the plaintiff of his claim for a jury trial, and denying another motion that she should be allowed to file a claim for a jury trial.
We have no doubt of the power of the court to take a view, and in a proper case to authorize an auditor to do so.
Generally cases are to be heard and determined upon the evidence submitted in open court. But where the court is of opinion that a view will tend to a better understanding and more satisfactory disposition of the case, it may in its discretion authorize one to be taken. See Com. v. Chance, 174 Mass. 245, 54 N. E. 551, 75 Am. St. Rep. 306; Tully v. Fitchburg R. R. Co., 134 Mass. 499, 503.
The case was entered in June, 1900, and the plaintiff duly filed a claim for a jury. An auditor was appointed and his report was filed September 30, 1905. On October 4th, the plaintiff filed a waiver of a jury trial. On the 14th of November, apparently just as the case was about to be reached for trial, the defendant filed the two motions referred to above. The grounds on which the court overruled them do not appear, and nothing is before us except what the record discloses.
It is possible that the court may have been of the opinion that the only satisfactory explanation of the defendant's conduct in not claiming a jury trial when the action was entered and in delaying from October 4th, to November 14th, to file her motions was that she had no intention of claiming a jury trial originally and that her purpose was to delay and obstruct the plaintiff in the prosecution of his claim. If so, the presiding justice was justified, in the exercise of his discretion, in denying the motions, and the question which the defendant seeks to raise as to the effect of a withdrawal by the party making it of a claim to a jury trial on which the other party has relied does not arise. Stevens v. McDonald, 173 Mass. 382, 53 N. E. 885, 73 Am. St. Rep. 300. Further it is to be noted that the defendant was defaulted and the case was heard by the court only on the question of the assessment of the damages. If the defendant had wished to have the damages assessed by a jury it was necessary to make a motion specifically addressed to the assessment of damages after the default. Gallagher v. Silberstein, 182 Mass. 20, 64 N. E. 402. Not having done so, she has no just ground for complaint. Judgment on the finding.
(192 Mass. 263)
FALARDEAU v. HOAR et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1906.)
1. MASTER AND SERVANT-INJURIES TO SERVANT - DANGEROUS PREMISES — TRAPDOORFAILURE TO SEE.
Where a servant was injured by falling through a trapdoor in the floor of one of the halls of defendant's building, and testified that he had often passed through the hall before and had never noticed the trapdoor, his failure to see the same did not establish negligence on his part as a matter of law.
[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 1089-1132.] 2. SAME-CARE OF OWNER.
Where the owners of a building maintained a trapdoor in the floor of a hall, which would be opened by their servants only at intervals for the performance of particular duties, defendants owed to their servants the duty to give warning of the use of the trap.
3. SAME-PROVISION OF BARRIERS.
Where defendants maintained a trapdoor in the floor of the hall of their building which was used by their servants at irregular intervals, if defendants provided barriers or other means of protection for those walking in the hall which barriers were to be used by their servants whenever the door was lifted, the use of such barriers might be intrusted to the servants in connection with their work involving the opening of the door.
[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 228-231.] 4. SAME-INFERENCE OF NEGLIGENCE.
In an action for injuries to a servant by falling through a trapdoor in the floor of the hall of defendants' building, evidence that at the time of the accident no barriers were used and no warning given that the door was open
was sufficient, if unexplained, to justify an inference of defendants' negligence.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 972.1 5. SAME-FELLOW SERVANTS.
In an action for injuries to a servant by falling through a trapdoor in the floor of the hall in defendants' building which was unguarded, it was proved that it was the custom to barricade the opening with a ladder or settee or otherwise, which articles were kept in a room near by. The court charged that if barriers were provided, and if, from the custom to use barriers, defendants knew that the janitor and his assistant were using such articles as barriers, then defendants had done all that the law required of them, and the assistant janitor's failure to use barriers on the occasion in question constituted the negligence of plaintiff's fellow servant, for which defendants were not liable. Held, that such instruction was correct. 6. SAME-DANGEROUS PREMISES - CARE RE
If defendants had made no provision for a barricade or warning of a trapdoor located in the hall of their building, and had no knowledge that ladders or settees were used as barriers by their servants, defendants would not be relieved from liability for injury to a servant by falling through such trapdoor at a time when such articles were not used.
Exceptions from Superior Court, Suffolk County; Lloyd E. White, Judge.
Action by William O. Falardeau against D. Blakeley Hoar and others. A verdict was rendered in favor of plaintiff, and defendants bring exceptions. Overruled.
C. E. Washburn, for plaintiff. Edward F. McClennen, Harrison F. Lyman, and Brandeis, Dunbar & Nutter, for defendants.
KNOWLTON, C. J. The plaintiff, while temporarily employed in a building held and managed by the defendants as lessees, fell through a trapdoor in the floor of one of the halls, and was injured. This trapdoor was set in an opening in the floor, and could be lifted out of the opening by a ring. There was much contradiction between the defendants' witnesses and the plaintiff in regard to some of the material facts in the case; but as the jury presumably believed the plaintiff, we must consider the exceptions in the aspect of the testimony which is most favorable to him.
He testified that he had often passed through this hall but never had noticed the trapdoor. We cannot say as matter of law that his failure to notice it shows a lack of due care. Johnson v. Field-Thurber Company, 171 Mass. 481, 51 N. E. 18. According to his account of the accident, he was passing through the hall in the performance of his duty walking in the usual way, when he met King, an assistant of the janitor, and went on a little further, after which he remembered nothing more until he found himself in the hospital. The evidence showed that King had taken out the trapdoor to put some ash cans into the cellar, leaving an opening in the floor four feet square, through which the plaintiff fell. There was nothing there
but the opening to indicate that the floor was not in its usual safe condition. There was testimony from a medical expert that a person receiving a severe blow on the head as the plaintiff did, ordinarily loses the recollection of everything occurring immediately before the blow. We are of opinion that it was a question for the jury whether the plaintiff, walking there in an ordinary way in the performance of his duty, was in the exercise of due care, even though he failed to notice an opening in the floor in a hall where he had always found the floor in perfect condition, and where he had reason to believe that it was absolutely safe. Thyng v. Fitchburg Railroad Company, 156 Mass. 13, 30 N. E. 169, 32 Am. St. Rep. 425; Maguire v. Fitchburg Railroad Company, 146 Mass. 379, 15 N. E. 904. If, in looking forward the hall seemed in its usual condition, we cannot say as a matter of law that he was bound so to scrutinize the floor as to be sure that there was no opening in it. The danger that one might step into such an opening without noticing it was recognized by the janitor who testified as follows: "I had always put a stepladder or settee there as a protection when I opened the trapdoor. I did not give King any instructions to do this on the morning of the accident, and I did not look to see whether it had been done, because he had always put something there, and of course I supposed he knew enough to do it that time."
The defendants contend that there was no evidence of negligence on their part. It was their duty, in a general way, to have the building in a safe condition for those who were working in it. An opening in the floor of a hall rendered it unsafe for those who had occasion to pass through the hall without knowledge of the opening. Such an opening was in the nature of a trap for those who were ignorant of it, and it was the duty of the defendants to give warning of it. This opening would be made only at intervals by the defendants' servants for the performance of particular duties. If the defendants provided proper barriers or other means of protection for these walking there, which were to be used by their servants whenever the door was lifted up, the use of these barriers might be intrusted to servants in connection with their work which involved the opening of the trapdoor. Moynihan v. Hills Company, 146 Mass. 586, 16 N. E. 574, 4 Am. St. Rep. 348. At the time of this accident no barriers were used and no warning was given. From these facts, unexplained, the jury might infer negligence on the part of the defendants. Griffin v. Boston and Albany Railroad Company, 148 Mass. 143, 19 N. E. 166, 1 L. R. A. 698, 12 Am. St. Rep. 526; Savage v. Marlborough Street Railway Company, 186 Mass. 203, 71 N. E. 531; Feital v. Middlesex Railroad, 109 Mass. 398, 12 Am. Rep. 720. By way of explanation the defendants offered evidence
that when the door was opened it was the custom to barricade the opening by putting across it "a ladder or settee, or anything that would go across there," and that such articles were kept in a room near by. The judge left to the jury the question whether the defendants had made provisions for a barricade, by an instruction in these words: "Now, this is a question for you. If there were barriers provided, and if from the custom there to use those barriers the defendants in the line of their supervision knew that those were being used for barriers, and that Wildes (the janitor) and King were using them as barriers, why then, they had done all that the law required of them, and the act would become the negligent act of a fellow workman, namely, King, in the failure to use those things which were provided as barriers, and which the defendants, in the line of their supervision, knew were being used for that purpose." This instruction was correct. The defendants requested a similar instruction, which omitted in its hypothetical statement the element of intention on the part of the owners or persons in control of the building that the articles which were suitable for making a barricade should be used for that purpose, and the element of knowledge that they were so used, and they excepted to the refusal to give the instruction, and to the instruction given so far as it included knowledge on the part of the owners as a requisite.
This exception must be overruled. If the defendants had made no provision for a barricade or warning, and had no knowledge that ladders or settees were used as barriers, and these things were sometimes so used without their knowledge, they would not be relieved from liability for an accident at a time when they were not used, and when they had made no provision for erecting a barrier or giving a warning.
The jury must have found that the defendants made no proper provision for giving warning.
Some evidence that the testimony of Wildes and King should not be given the effect imputed to it by the defendants is found in the fact that the defendants, while seemingly stating in their answers to interrogatories the facts relied upon by them as a defense, did not refer to any provision of this kind. Exceptions overruled.