Chandler v. Jamaica Pond Aqueduct Corp.

Colt, J.

The Jamaica Pond Aqueduct Corporation were authorized by the St. of 1868, c. 182, to take additional land within two years from its passage, for the purpose of better supplying fresh water, and for saving and retaining the water that may percolate from Jamaica pond.

The aqueduct company claim to have legally taken the plaintiff’s land under this act within the time limited; this is denied by the plaintiffs, who bring this bill to remove an alleged cloud on their title. The only question raised by the allegations in the bill and answer being, whether the acts relied on are sufficient to show a taking of the plaintiffs’ land under the act.

It appears that a certificate signed by the president of the company, and containing a sufficient description of the land in question, was filed in the registry of deeds within the required time, in which it is declared that the company had entered upon the described land for the purpose of the act. And it was further shown that on the day before the filing of the certificate, the president, accompanied by an engineer, did in fact enter upon the premises and walk over the bounds of the land.

*577 This was a sufficient compliance, in the opinion of the court, with the conditions upon which the granted power was to be exercised. It was a taking for the purpose mentioned in the act, followed by the filing of a description of the land in the registry of deeds as required by the statute. No further formality is made necessary. The act provides that damages may be assessed by a jury upon application made to the court within three years after such taking. It is important that the exact time of the taking should be easily ascertainable. Under the railroad acts, containing similar provisions, it has been held that filing the location binds the land to the servitude, and concludes the owner from denying the title of the company, and that the time for the application for damages in those cases must be computed from that act, and not from the completion or actual commencement of the public work contemplated. Boston Providence Railroad Co. v. Midland Railroad Co. 1 Gray, 340 , 360. Charlestown Branch Railroad Co. v. County Commissioners, 7 Met. 78 .

It is sufficient for this case if the acts relied on constitute a legal taking. It must be here assumed that the land was entered upon in good faith for the public use indicated. Upon the allegations in the bill, the suggestion is not open that the act of taking was colorable and fraudulent; and if once legally taken under the right of eminent domain, the fact that the land is unreasonably and wrongfully withheld from the public use to which it is devoted, or is diverted to private ends, cannot be availed of in support of this proceeding.

Bill dismissed.