USA > Massachusetts > Middlesex County > Melrose > City of Melrose annual report 1862-1879 > Part 21
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in the County of Middlesex, deceased, intestate. That on the 28th day of March, A. D. 1871, and for a long time before that date, said David Dyer was seized in fee, in his own right, and was in possession of a certain mill-pond and dam in Malden, in the said County of Mid- dlesex, known as the Odiorne Pond and Dam, being the same dam intended in the order hereinafter cited, which furnished a valuable mill power as well as water for washing, cleansing, and dyeing ; that the same was of great value to said Dyer, and capable of yielding him large income and profit in that under and by virtue of the provisions contained in an Act of the Legislature of the Commonwealth of Mas- sachusetts, passed June 11, 1869 (See Chap. 378, A. D. 1869), entitled " An Act relating to Drainage in the Towns of Malden and Melrose," and in an Act in addition thereto, passed May 9, 1870 (See Chap. 22S, A.D. 1870). An order was passed by your Honorable Board the twenty- eighth day of March, 1871, that the dam at the upper mill privilege, or Dyer's Mill, should be removed forthwith, and agents were at the same time appointed by you to execute said order ; that in pursuance thereof said dam was at once taken possession of by said agents, and was by them taken down and removed, without the consent of said Dyer, and he was thereby greatly injured in his property. That your Board failed to make, either at the time of making said order, or of the actual taking possession, taking down and removing of said dam, any assessment or award of said Dyer's damage, in that behalf sus- tained. That in and by said first-named Act your Board is authorized to agree and effect a settlement of the damage sustained by any person to his property by reason of your acts under the same. That for greater caution said Dyer applied to your Honorable Board within one year from the date of said order, and from the time of the actual taking possession, taking down and removing of said dam, by his peti- tion filed and presented Feb. 20, 1872, at a regular session of said Board, setting forth the facts hereinbefore alleged, and prayed that the amount of his said damage might be agreed upon and settled by you, if the same could be done to his satisfaction ; but your Board declined so to do, and awarded no damage to said Dyer, all which appears by said petition, with your order thereon, dated Feb. 20, 1872, now on file. And so said Dyer failed alike to receive any award or assessment of damage by your Honorable Board and to effect a settlement there- for by agreement. That thereupon said Dyer applied to your Honor- able Board, also within one year from the date of said order and from the time of the actual taking possession, taking down and removing of said dam, by his petition filed and presented March 26, 1872, at a reg-
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REPORT OF SELECTMEN.
ular session of said Board, setting forth the facts hereinbefore alleged, and that he was dissatisfied and aggrieved by the doings of your Board in the premises, and prayed that he might have a jury to determine the matter of his complaint, and to revise the judgment of your Board in the matter of his damages, and to assess and award the same as they should deem just, according to the statute in such case made and pro- vided. Said petitioner further represents that said Dyer deceased, intestate, on the twelfth day of January, A. D. 1873, having never had said trial by jury as prayed for by him. That said petitioner was appointed administrator on said Dyer's estate, and has been duly qualified for that trust. Wherefore your petitioner, desiring to revive and prosecute said last-named petition of his intestate, asks leave that he may be permitted to come in and appear for that purpose, and that the prayer of said petition may be granted ; that a warrant may be issued for a jury, and that a trial by jury and such other proceed- ings may be had as are in accordance with the statute in such case made and provided ; and that he may have such other relief in the premises as to law and justice appertains.
GEO. W. PHILLIPS,
Administrator.
COMMONWEALTH OF MASSACHUSETTS.
MIDDLESEX, SS.
At a meeting of the County Commissioners for the County of Mid- dlesex, at Cambridge, in said county, on the first Tuesday of January, in the year of our Lord one thousand eight hundred and seventy-five, to wit, by adjournment at said Cambridge, on the sixth day of April, A. D. 1875.
On the foregoing petition, it is ordered that the petitioner notify the town of Malden, the town of Melrose, and the Boston and Maine Railroad Company, all in said county, to appear before said commis- sioners at their meeting, to be holden at said Cambridge, on the first Tuesday of June next, at ten of the clock in the forenoon, by serving the Clerk of each of said towns and said Railroad Company each with an attested copy of said petition and of this order thereon, thirty days at least before said last mentioned day, that said towns and Railroad
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REPORT OF SELECTMEN.
Company may then and there show cause, if any there be, why the prayer in said petition contained should not be granted.
By the County Commissioners.
JOHN J. SAWYER,
Asst. Clerk.
Copy of petition and order thereon. Attest:
JOHN J. SAWYER, Asst. Clerk.
A true copy.
Attest:
EBEN W. FISKE, Deputy Sheriff.
In pursuance to this notice, we appeared and had a hear- ing, Mr. Phillips asking for a jury, we denying his right to a jury, as the commissioners had made no final award, and consequently that his application was premature. At the close of the second day (the hearing lasting two days), after full argument by all the parties, our view of the matter was sustained and the petition dismissed.
This left the whole matter in an unsettled condition where it had been hanging for years ; and acting upon the request of the commissioners, seconded by our own citizens, we pre- sented a request to have the matter terminated at once. Accordingly notice was issued, and several long and pro- tracted hearings were the result. On the 9th of September, 1875, together with the commissioners and the selectmen of Malden, we went over the entire ground, from the old dam in Malden to Ell Pond in Melrose.
At each and every one of these hearings our aim was to show that no damages should be awarded to the Dyer heirs, as they had been fully compensated by the payment of a large sum for the. Spot Pond water, and that without this privilege their dam was worthless; and the commissioners sustained our view of the matter, awarding them no damages.
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REPORT OF SELECTMEN.
Also, that the improved land which the drainage had left was worth more to them than before its removal.
The following statement will show how much and to whom the town had paid out by order of the commissioners during the years 1871-72 : -
AMOUNTS PAID BY THE TREASURER OF THE TOWN OF MELROSE.
1871.
June 7, paid John Norton
$105 00
September 14, paid John Norton . 400 00
September 25, paid Ellis & Co. 200 00
September 25, paid S. O. Dearborn 175 00
September 30 and October 2, paid Ellis & Co. . 200 00
October 3, paid John Norton 500 00
October 14, paid Ellis & Co. 500 00
October 28, paid Ellis & Co. 260 00
October 28, paid Levi Martin 65 00
October 28, paid John Norton 1872.
122 49
February 23, paid Ellis & Co. .
400 00
October 3, paid Ellis & Co. 400 00
1873.
January 13, paid Ellis & Co.
18 06
February 5, paid S. O. Dearborn
100 00
Total
$3,445 55
We also claimed that the towns of Melrose and Malden, having already paid large sums of money for this work, were entitled to receive from the other parties benefited, especially the Boston and Maine Railroad, a sum sufficient to equalize and place upon each a fair share of the expense, in propor- tion to the amount of benefit received.
A large number of witnesses were summoned by the com-
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REPORT OF SELECTMEN.
missioners, and almost all of them, with very few exceptions, took this same view of the case; and also that the Boston and Maine Railroad had received great benefit, owning a large number of acres within the limits of the two towns which had been vastly improved. Every point was fully brought out in the many days spent in the investigation, and on the 18th of January, 1876, we received a copy of the award in the case, which we consider of sufficient importance to our citizens to publish entire, and it will be found annexed in this report.
Subsequently we received notice from Mr. Phillips that on March 2d he should make another formal application to the County Commissioners for a sheriff's jury to assess damages in the above case. We employed Col. F. S. Hesseltine to appear in behalf of the town and oppose the petition. After argument by the counsel for the several parties in interest, the commissioners dismissed the petition.
FINANCIAL AFFAIRS.
The financial affairs of the town continue to improve. The treasurer's report shows a reduction of about $21,000 in the debt of the town. The debt of the town contracted prior to January 1, 1874, is fully protected by the sinking fund. Some say, " Abolish the sinking fund." Query : Can a government, State, or town abolish or essentially modify at will with impunity a sinking fund, established to meet certain obligations, before those obligations are practi- cally met? We have a large debt, but we have considerable property to show for it. Our taxes have been high ; thoughtless appropriations and protracted litigation are costly luxuries. Every appropriation should be fully discussed and well understood before voting it. Melrose is not a manufac- turing town. Depression in any particular business does not seriously affect our growth. We are a young and thrifty people, found in all kinds of business, gleaning the fruits of
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REPORT OF SELECTMEN.
earnest toil. The assessor's report shows that the population and wealth of the town are steadily increasing ; that a large number of good, substantial houses have been built the past year in spite of the general depression of business, not for sale or to let, but for homesteads ; that we have a compact little territory, about three miles square, almost every inch of which is valuable. We have ample church accommoda- tions and costly schools. We have splendid railroad facili- ties, good county and town roads, good water and good drainage. We have a healthful soil and beautiful natural scenery. We have enjoyed the past year special immunity from calamity and pestilence. "We have thought of Thy loving-kindness, O God, in the midst of thy temple."
Respectfully submitted.
WALTER BABB, H. G. FIELDS, GEO. A. MANSFIELD, Selectmen of Melrose.
REPORT OF THE BOARD OF HEALTH.
WE are all interested in the work of the Board of Health. It stands in the pathway of the pestilence - between us somewhat and death. It is our duty to make it active and efficient. Death meets us always, everywhere; but it is simply a new mode of life, a change from time to eternity ; we should care to live but be ready to die. Dr. Moses Parker and forty others, and Mr. J. D. Wilde and thirteen others, asked the Selectmen, as a Board of Health, to abate a formidable nuisance, which was offensive to the neighbors and injurious to the general health, consisting of a sheet of stagnant water on wet and rotten land bounded by Main, Foster, Myrtle, and Essex Streets. This case affects a large number of private estates and a great amount of private property. It has been before the town for relief for many years. The selectmen made a thorough examination of the liability of the town at a very considerable expense to the town, and found the town was in no wise at fault, and that the ditch below Essex Street, the natural outlet of the water into Dix Pond, wholly through private property, was com- pletely filled up. This ditch is recognized and the line clearly defined in the deeds of the estates through which it passes.
The law on the subject, General Statutes, Chap. 26, Sect. 1 : " A town respecting which no provision is made by special law for choosing a Board of Health may at its annual meet- ing, or at a meeting legally warned for the purpose, choose
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REPORT OF THE BOARD OF HEALTH.
a Board of Health, to consist of not less than three nor more than nine persons, or may choose a health officer. If no board or officer is chosen the selectmen shall be the Board of Health."
ACTS OF 1868, CHAP. 160.
1. When any lands in any city or town are wet, rotten. or spongy, or covered with stagnant water, so as to be offensive to persons resid- ing in the vicinity thereof, or injurious to health, the same shall be deemed to be a nuisance, and the Board of Health or health officer of such city or town may, upon petition and hearing, abate such nuisance in the manner provided in the following sections.
2. Any one or more persons claiming to be injuriously affected by such nuisance may, by petition, describing the premises upon which such nuisance is claimed to exist, and setting out the nature of the nuisance complained of, apply to the Board of Health or health officer for its abatement, whereupon such Board of Health, or health officer, shall proceed to view the premises and examine into the nature and cause of such nuisance.
3. Ir upon such examination the Board of Health or health officer shall be of opinion that the prayer of the petition or any part thereof should be granted, he or they shall appoint a time and place for a licar- ing upon the petition, and before the time so appointed shall cause reasonable notice of the time and place to be given to the petitioners, the persons whose lands it may be necessary to enter upon to abate the nuisance, and any other persons who may be affected by the pro- ceedings, and, except in those cities and towns in which the mayor and aldermen and selectmen constitute the Board of Health, to the mayor and the chairman of the selectmen, that they may be heard upon the necessity and mode of abating such nuisance, and the ques- tions of damages, and of the assessment and apportionment of the expenses thereof.
4. Such notice shall be in writing, and may be served by any person competent to serve civil process, upon the mayor and chairman of the selectmen, the petitioners, the owner or occupant of any land upon which it may be necessary to enter, or which may be benefited thereby, or his authorized agent, or by leaving an attested copy of such notice at the last an'l usnal place of abo le of such persons; but if the lan Is are unoccupied, and the owner or agent is unknown, or without the State, the notice to such owner may be served by posting an attested
3
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REPORT OF THE BOARD OF HEALTH.
copy thereof upon the premises, or by advertising in one or more public newspapers in such manner and for such length of time as the Board of Health or health officer may direct.
5. At the time and place appointed for the hearing, the Board of Health or health officer shall hear the parties, and after such hearing may cause such nuisance to be abated, according to his or their discre- tion; and for that purpose may enter and make such excavations, embankments, and drains upon any lands, and under and across any streets and ways as may be necessary for such abatement. They shall also determine in what manner and at whose expense the improve- ments made shall be kept in repair, and shall estimate and award the amount of damage sustained by and benefit accruing to any person by reason of such improvements, and what proportion of the expense of making and keeping the same in repair shall be borne by the city or town and by any person benefited thereby. The damages so awarded shall be paid by the city or town, and there shall be assessed to the several persons benefited by such improvements his proportionate part, to be ascertained as before provided, of the expense of making and keeping in repair such improvements, and the same shall be included in the next city or town taxes of such persons, and shall be a lien upon the real estate benefited thereby, and be collected in the same manner as other taxes upon real estate, and shall be liable to abatement as other taxes now are.
6. The Boards of Health and health officer shall, within thirty days after the abatement of any nuisance in the manner hereinbefore pro- vided, make return to the city or town clerk of their doings in the premises, which return shall be by him recorded in the city or town books.
7. If the Board of Health or health officer shall unreasonably refuse or neglect to proceed in the matter of said petition, the petitioner may apply by petition to the Superior Court, or any justice thereof, who, upon a hearing and good cause shown, may appoint three commis- sioners, who shall proceed in the manner hereinbefore provided.
8. Any person aggrieved by the decision of the Board of Health, health officer, or commissioners in their estimate and award of dam- ages, may make complaint to the county commissioners for the county, at any time within one year after return to the city or town clerk, whereupon the same proceedings shall be had as are now provided by law in cases where persons or parties are aggrieved by the award of damages by selectmen for land taken for a town way.
23
REPORT OF THE BOARD OF HEALTH.
The Board viewed the premises and were " of the opinion that the prayer of the petitioners should be granted," and we called a public meeting of all persons interested in the matter, to be held in the selectmen's room June 4, 1875. Testimony taken. J. D. Wilde says, " It is a nuisance, it is injurious to the health of the whole community and ought to be abated somehow forthwith." Geo. H. Young says, " It is a nuisance, smells bad, and is injurious to health." Chas. T. Stevens says, "It is a nuisance and ought to be abated by filling." H. A. Norris says, "It is a nuisance and ought to be abated by the town ; it does not effect my property, ob- jects to any special assessment for abating it." Geo. F. Boardman says, "The water is a nuisance, will not object to pay a reasonable special assessment to have the water drained off," afterwards qualified by saying, " will not object to pay my regular taxes." W. I. Ellis says, "It is a nui- sance." T. J. Kimball says, " It is a nuisance, and ought to be abated by drainage and done by the town, but will not object to pay a reasonable special assessment to have it abated." W. W. Boardman says, "Don't know as it is a nuisance, can take care of my property, but will not object to pay a rea- sonable special assessment to have the water drained off into Dix Pond." Wm. Larrabee says, "The water is a nuisance and ought to be drained off into Dix Pond ; will not object to pay a special assessment to have it drained off." H. A. Thomas says, "It is a great nuisance, smells bad, is injurious to health, ought to be drained into Dix Pond, that Mrs. C. A. Shat- tuck will not object to pay any reasonable special assessment to have it abated." L. W. Lovering considers it a great nuisance. F. C. Anthes says, "It is a nuisance ; have no ob- jection to under-drainage by the old ditch through my land to Dix Pond." A. B. Pierce says, "It is a nuisance." P. Batchelder says, "It is a nuisance, injurious to health." Mrs. M. B. Hopkins appeared some time previously before
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REPORT OF THE BOARD OF HEALTH.
the Board and testified : "It is a great nuisance, ruining my health and destroying my property ; would be willing.to do anything to have it abated, pay the whole expense, if neces- sary, of abating it." After hearing the above testimony, with our own knowledge of the case, the Board adjudged it to be a nuisance, and decided to reopen the ditch below Essex Street and drain the water into Dix Pond, and assess the whole expense on estates immediately benefited.
The following bills have been approved by this Board and paid by the town, to wit : -
A. W. Lynde, for opening the ditch and putting in a box culvert . $150 00
S. F. Keyes, Esq., for legal services 47 00 ·
Moses Briggs, for serving notices . . 10 00
Babb & Stevens, for printing notices . 3 00
John Larrabee, for recording the report
6 00
Total
. $216 00
(Mr. Larrabee afterwards altered his bill to $4.00.)
And the amount assessed as follows, to wit : -
Geo. F. Boardman $26 00
W. W. Boardman
26 00
Wm. Larrabee
26 00
Archbishop Williams 26 00 ·
T. J. Kimball 26 00 ·
M. B. Hopkins
·
26 00
C. A. Shattuck
15 00 .
G. Burnham
15 00
S. A. Boardman .
· 10 00
S. J. Larrabee 10 00 ·
H. A. Norris .
.
·
10 00
Total
. $216 00
.
·
·
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REPORT OF THE BOARD OF HEALTH.
A complete report of all our doings has been made and recorded in the town clerk's office, and a written request was made of the assessors - giving them a history of the case - to assess the parties the sums set against their respective names, but they appeared before this Board and orally made answer, " We respectfully return your communication and decline to act." We then made a written request of the col- lector - giving him a history of the case - to put these sums on the next tax-bills of the respective parties, and he did so, but none have paid as yet, we believe, save Archbishop Williams.
We believe that this is the first important case ever brought before the selectmen as a Board of Health in the history of this town.
Respectfully submitted.
GEO. A. MANSFIELD, H. G. FIELD, WALTER BABB,
Board of Health.
REPORT AND AWARD OF COUNTY COMMISSIONERS.
COMMONWEALTH OF MASSACHUSETTS ..
MIDDLESEX, SS. :
At a meeting of the county commissioners for the county of Middlesex, holden at Lowell, within and for said county, on the first Tuesday of September, in the year of our Lord one thousand eight hundred and seventy-five.
The petition of Wingate P. Sargent and others for drain- .age of lands in Malden and Melrose.
This petition was presented to the county commissioners, at their meeting holden at Cambridge, within and for said county, on the first Tuesday of January, A. D. 1871, when and where said commissioners caused notice to be given to all persons and corporations interested therein of the time and place when and where they would meet for the purpose of viewing the premises and hearing the parties, as by said notice on file will fully appear, and thence said petition was continued from time to time to this time.
And now the said commissioners make return of their pro- ceedings in the premises, as follows : The county commis- sioners for said county, having given notice according to law, met at the Town Hall in Malden, on the 21st day of February, 1871, when and where the petitioners appeared and were heard, as does more fully appear by the following order and decree, made and issued on the 28th day of March of the same year, to wit : -
" Commonwealth of Massachusetts, Middlesex County, Commissioners' Court. In session this day, March 28, 1871. January meeting. Docket number 82. Petition of Wingate P. Sargent and others for drainage of lands in Malden and
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REPORT AND AWARD OF COUNTY COMMISSIONERS.
Melrose, and removing obstructions in brooks and streams in said towns between Ell Pond in Melrose and Spot Pond in Stoneham to the tide-water in Malden. The proceedings of the commissioners upon the petition are under a special Act of the Legislature of the year 1869. The first meeting of the commissioners was at the Town Hall in Malden on the twenty-first day of February last past. That meeting was adjourned to March 16th, inst., at the same place. At the adjourned meeting all the commissioners were present, - the Water Commissioners of Malden and of Melrose. D. W. Gooch, Esq., was also present as counsel for the petitioners, and the Water Commissioners' certificates were received at this meeting by the commissioners from the town clerks of Malden and Melrose that both of these towns had accepted the Act reasonably and legally. The premises were then examined; then a hearing on the question of removing the obstructions. In this hearing it appeared as the sentiment of the witnesses, and through them as the sentiments of both Malden and Melrose, that the dam at the upper privilege, or Dyer's Mill privilege, should be removed. Upon a careful consideration of the matter, the commission- ers, therefore, do now deem the removal of the said dam at said Dyer's privilege " necessary for the purposes of proper drainage and the public health "; and they further issue this their order and decree that the dam be removed, and in such manner that the water standing above the said dam may pass away with as much facility as may comport with the safety of the lower privilege and the banks above, and that the brooks and streams be permitted to flow without obstruction from Ell Pond in Melrose and Spot Pond in Stoneham to a point below the present (Dyer) dam and to the water basin or pond of the lower or Barrett privilege.
" The commissioners further order, decree, and direct that this removal of the said dam be forthwith; and they appoint
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REPORT AND AWARD OF
as agents for this service Albert T. Sargent, of Malden, and Jeremiah Martin, of Melrose. And these agents are directed to personally superintend the removal of this dam; and in order that such further decrees as may be necessary for a full accomplishment of the object provided for in the Act above referred to may hereafter be made, they are to exam- ine the premises in question as the water falls from the marshes and meadows adjacent to the brooks into the old channels, and note whether or not these channels are free from obstructions. And these said agents, at the expiration of ten days, are directed to report in writing to this commis- sion an account of their proceedings and findings in this matter.
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