Lewis v. City of Boston

Soule, J.

The injury for which the plaintiff seeks to recover damages resulted from the action of the defendant in connecting the waters of Sudbury River with Lake Cochituate, for the purpose of increasing the water supply of the defendant city. Authority to make this connection was given by the St. of 1872, e. 177, which provided a method by which all injury sustained by any person from the action of the city under the statute, might be ascertained and recovered. The plaintiff has made, his petition in accordance with the provisions of the statute, has recovered judgment for his damages, and the judgment has been satisfied. He contends, however, that he is entitled to recover in this action of tort, because the acts of which he now complains were done in the year 1873, and the defendant had not then filed, and did not file until March 1875, the statement and description of land taken under the act, which statement the statute requires to be filed in the registry of deeds within sixty days from the time of the taking.

It is undoubtedly true that, if the city had never filed the required statement and description, it would have been a trespasser in flowing the lands of the plaintiff, and liable to him in an action of tort for the damage done. Wilson v. Lynn, 119 Mass. 174 . Wamesit Power Co. v. Allen, 120 Mass. 352 . It is equally true that, when the plaintiff filed his petition under the statute for the recovery of the damages sustained by him through the action of the city thereunder, he was entitled to recover in the proceedings thus instituted compensation for all the injury which he had sustained at any time from the action of the city under, or purporting to be under, the authority given by the statute. Moore v. Boston, 8 Cush. 274 . The recovery is not limited by the act to injury sustained within three years before the filing of the petition. The only limitation is that the petition be filed *341 within three years after the taking, which term begins with the filing of the statement and description in the registry of deeds. The injury now complained of being a proper subject of inquiry before the tribunal which determined the matter of the plaintiff’s petition under the statute, he cannot be permitted to recover damages therefor, on the ground that it was not in fact inquired into and determined. The cause of action was one, and the plaintiff cannot divide it into two parts, for adjudication by two distinct tribunals. The judgment on his petition under the statute concludes him as to all questions of damage through the action of the city under the statute. In the recent case of Spaulding v. Arlington, 126 Mass. 492 , although it appeared that the plaintiff at the hearing of his petition under the statute was not permitted to introduce evidence offered of injury sustained through action of the town more than sixty days before the statement and description of land taken were filed in the registry of deeds, it was held that he was entitled to recover damages for such injury under that petition, and that he could not afterward maintain an action of tort therefor. The doctrine of that case covers the case at bar, and it stands on satisfactory reasons.

Judgment affirmed.