USA > Massachusetts > Essex County > Swampscott > Town annual report of Swampscott 1900 > Part 3
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Voted, That Weston K. Lewis be added to the Sewerage Committee.
Voted, That when we adjourn it be to Monday, May 15 next, at 7.45 P. M.
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TOWN DOCUMENTS.
[Feb. 23
Report of the Selectmen on Arts. 31 and 33.
SWAMPSCOTT, MASS., April 24, 1899.
To the Citizens of Swampscott :
Your Board of Selectmen, to whom was referred Art. 31, accepting Stetson avenue, and Art. 33, drainage of Norfolk avenue, beg leave to report that they have not been able to get any agreement from the Stetson Land Company, and on this account must ask for further time.
GEO. T. TILL, E. A. MAXFIELD, H. NEWCOMB, Selectmen.
Voted, That further time be granted the Selectmen for con- sideration of the matter of Art. 33, Drainage of Norfolk avenue.
ART. 23. The Street Light Committee reported that they could place an arc light, as petitioned for in this article, without further appropriation.
Report of the Park Commissioners on Art. 41, in the Matter of the Claim of John Smith for Compensation for Land.
To the Citizens of Swampscott :
We are in receipt of notice of the vote requesting us to report at an adjourned meeting how many feet of land of John Smith have been taken, and who we have paid for each and every foot of the same.
As the proceedings in relation to the payment for this land practically went out of our hands when the award we made to Captain Smith was refused; and as the proceedings from that time forward have been wholly before the courts, we have deemed it wise to call upon counsel for the Town to make a full report in relation to the controversy between Captain Smith and
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RECORDS OF TOWN CLERK.
1900]
the Town, and we believe the information desired by the Town may be found in the report of the Town Counsel, which we incorperate in our report, and which is as follows :
To the Park Commissioners of the Town of Swampscott :
We hereby acknowledge the receipt of the copy of the vote passed by the Town, as certified by the Town Clerk, by which vote you are requested " to report at an adjourned meeting how many feet of land of John Smith you have taken, and who you have paid for each and every foot." In answer to your request for information upon this point, we respectfully refer you to the taking of land for Blaney's Beach, which may be found upon pages 56, 57 and 58 of the Annual Report of the Town of Swampscott for the year ending February 27, 1897.
You are aware that the taking of land must be of record. Neither the amount of land taken nor the boundaries of the land depend in any way or to any extent upon the statements, opin- ions or testimony of witnesses, so it would be useless for you to hear testimony. The Park Commissioners took, as you will see by said report, all the land on Blaney's Beach lying between Humphrey Street and extreme low water mark; but the par- ticular part of the land so taken, which the Park Commissioners adjudged to belong to Captain Smith, is clearly defined upon the plan drawn by C. W. Gay, Civil Engineer, dated May 29, 1895, which plan is on file in the office of the Park Commissioners, and a copy thereof was, and doubtless now is, on file in the office of the Town Clerk. By that plan you will plainly see that the part of the land taken, which they accredited to John Smith, is given as 529 square feet, and no more. On this basis, the Park Commissioners made their award of damages to Captain Smith, and on the 29th day of March, 1897, Captain Smith caused to be prepared by his attorney and shortly after said date filed in the Supreme Court a petition in which he plainly set forth the same boundaries given by the Park Commissioners, and stated the amount of land which he claimed to own as 529 square feet.
The case after that came on for trial in the Supreme Court. The jury were taken, at the request of the attorney for Captain
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TOWN DOCUMENTS.
[Feb. 23
Smith, to view the land taken, and it was pointed out to them. The case was upon trial for several days, and the jury returned their verdict, awarding damages for all the land which Captain Smith claimed to have owned.
A motion for a new trial was made by Captain Smith and argued, and another trial refused. He then filed a bill of ex- ceptions to rulings of the Judge, for the purpose of removing the case to the Supreme Court, and these exceptions were overruled. He then made application to the Supreme Judicial Court to have all the proceedings of the Park Commissioners declared null and void, and after most lengthy and expensive litigation in the Supreme Court that Court sustained the action of the Park Com- missioners, and refused to entertain the complaint of Captain Smith.
You will perceive the great injury which would have resulted to the Town if Captain Smith had prevailed in this connection, as, if the Court had sustained the claim of Captain Smith, all the doings of the Park Commissioners as to all the land taken would have been by the same decree found to be void, and the Town would have been left without a park.
After the decision of the Supreme Court, Captain Smith took execution for the amount awarded by the jury, placed it in the hands of Deputy Sheriff Merritt, and the same was paid in full to the Deputy Sheriff.
So you may answer that the amount of land belonging to John Smith, which was taken by the Park Commissioners was 529 square feet; that for each and every foot of land so taken, John Smith has been paid the amount awarded for the same by the jury upon the petition of the said Smith for the assessment of damages by said jury. In other words, Captain Smith asked that the jury assess his damages, the Town assented, the jury did assess his damages, and the amount of such assessment has been fully paid. We ought, also, to add that from the day the land was taken down to the time the execution was paid there had never been an intimation in court or out of court, so far as we ever heard, that the amount of land claimed by Captain Smith was more than 529 feet.
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RECORDS OF TOWN CLERK.
1900]
Within a very few days after the execution was paid, Captain Smith having collected payment for all the land he then claimed to own, summoned the Town before the Superior Court in Bos- ton on an application for leave to amend his proceedings so that instead of claiming 529 square feet, as he had always previously done, he would, if said amendment were allowed, be entitled to compensation for 5,389 square feet. It is hardly necessary to add that the Court promptly refused to allow this amendment.
We have recited at length the course of proceedings in this case, so that you may realize the immense cost and expense to which Captain Smith subjected the tax payers of the Town before he ever brought the matter to the attention of the voters. He resorted to every means known to the law to compel the Town to pay a higher price for the land he claimed without even a sug- gestion that he owned to low water mark, or any other land than the 529 feet, and these 529 feet, it will be remembered, he never bought or paid for.
Not being satisfied with having exhausted every possible legal action in the courts as to the land and building, he has now brought an action for $1,500 in the Superior Court against George A. Jackson, Edward H. Kitfield, Robert B. Wardwell and Benjamin Potter, who at different times have been park commissioners, seeking to recover damages of them for the personal property which was removed from the Smith building, after repeated notices to him to remove it.
This action against the Park Commissioners he commenced since the Town meeting at which the matter was referred to you. He has also since that meeting, namely, on the 17th day of April, filed an application in the Superior Court to have his case reopened, for the purpose of enabling him to prove that he owned the land not only where his building stood, but to low water mark. It will be remembered that a motion to this same effect was heretofore made in the Superior Court and overruled.
While Captain Smith has been and is still putting the Town to all the cost and expense it is in his power to make, and while the court has adjudged every application he has made so far since the verdict was rendered to be for relief to which he was
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TOWN DOCUMENTS.
[Feb. 23
not entitled, we do not see why the voters should withdraw these proceedings from the court into which he persists in carrying them for the purpose of reversing or modifying, even if they had power to do so, the decisions of the court.
NILES & CARR,
Counsel for Swampscott.
Lynn, Mass., April 22, 1899.
All of which is respectfully submitted.
EDWARD H. KITFIELD, FRANK L. EARL, H. CUSHING BULFINCH, Park Commissioners of Swampscott.
Voted, To accept and adopt the report of the Park Commis- sioners on Art. 41.
Report of the Park Commissioners on the Matter of Art. 42. In the Matter of the Claim of the Stone Heirs for Compensation for Land.
To the Citizens of Swampscott :
We are in receipt of notice of the vote that the matter of claim for compensation by the Stone heirs for land taken for park pur- poses by your Board be referred to us.
Upon inquiry as to the facts in this case, we find that the heirs of the Stone estate, in April, 1897, applied to the Superior Court to have their damages determined by a jury; that upon this petition, after a long trial before a jury, a verdict was rendered for $4,278.80; that afterwards a motion was made to have the verdict set aside, and the Court refused to set it aside. A bill of exceptions, for the purpose of removing the case to the Supreme Court, was next filed, and the exceptions were disallowed. An application to the Supreme Court to remove the case to that Court was then filed, and in November last this proceeding was withdrawn.
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RECORDS OF TOWN CLERK.
1900]
Judgment was entered upon the verdict of the jury July 4, 1898, and that judgment is still in force. The record of the Court shows that this judgment was for compensation for all the land of the Stone heirs between Humphrey street and low water mark.
We are advised by counsel for the Town that when the Park Commissioners made their award, and an appeal, so to speak, therefrom was taken to the Superior Court, their jurisdiction and power over the matter of land damages was absolutely exhausted.
We are further advised that no vote of the Town can give us further jurisdiction over this matter, and that any vote or further award by the Park Commissioners would be absolutely void, and that any vote of the Town to add anything to the verdict of the jury would also be null and void.
Seeing then that the matter has been absolutely removed from the jurisdiction of the Park Commissioners to the jurisdiction of the Court, and that no action of ours, however favorable to the petitioners, could avail them anything, we have deemed it inad- visable to engage in any further hearing of facts, especially as the Park Commissioners, since the trial in the Superior Court, granted to the Stone heirs, through their counsel, the Hon. Frank D. Allen, a full hearing and found themselves unable to do any- thing for the relief of the petitioners.
Respectfully submitted,
EDWARD H. KITFIELD, FRANK L. EARL, H. CUSHING BULFINCH, Park Commissioners of Swampscott. .
Voted, That privilege be granted to William H. Niles, Esq., Town Counsel, to speak on this question.
After statement by Mr. Niles in reference to action taken in the matter under consideration, it was voted, Yes 31, No 5, to accept and adopt the report of the Park Commissioners on Art. 42.
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TOWN DOCUMENTS.
[Feb. 23
Voted, To take Art. 15 from the table. After debate it was voted, Yes 23, No 5, to refer Art. 15 to the Selectmen, they to report at adjourned meeting.
ART. 32. The chairman of the School Committee reported that the expense necessary to fit up a room, employ a teacher, and other necessary expenses incident to the establishing a school for instruction in branches referred to in this article would be $2,200, and their committee do not recommend action at this time.
Voted, To accept and adopt the report of the School Commit- tee on Art. 32.
Report of the Selectmen on Article 30.
SWAMPSCOTT, MASS., April 7, 1899.
To the Citizens of Swampscott :
Your Selectmen, to whom was referred Article 30, pertaining to Maple Avenue, beg leave to report that the estimated cost of putting this street to grade, if accepted by the Town, is four hundred dollars ($400).
GEORGE T. TILL, E. A. MAXFIELD, H. NEWCOMB,
Selectmen.
ART. 30. Voted, That the report of the Selectmen on Maple Avenue be laid upon the table.
Voted at 10.30 P.M. to adjourn.
Attest :
MILTON D. PORTER,
Town Clerk.
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RECORDS OF TOWN CLERK.
1900]
Special Town Meeting, May 15, 1899.
TOWN WARRANT.
ESSEX, SS.
To either of the Constables of the Town of Swampscott, in said County,
Greeting ;
In the name of the Commonwealth of Massachusetts, you are directed to notify the inhabitants of the Town of Swampscott, qualified to vote in elections and in Town affairs, to meet at the Town Hall, in said Swampscott, on Monday, the fifteenth day of May, current, at seven-thirty o'clock, evening, then and there to act on the following Articles, viz :
ARTICLE I. To choose a Moderator.
ART. 2. To see if the Town will appropriate a sufficient sum of money for the purpose of meeting the deficiency for Park pur- poses which will exist upon the abatement of betterments, and to take any action necessary to settle all outstanding claims for land taken or purchased and expenses incurred in the laying out and establishment of Blaney's Beach Park.
And you are directed to serve this Warrant by posting attested copies thereof at the Town Hall, Depot, Post Office, and three other public and conspicuous places in the Town, seven days at least before the time of holding said meeting.
Hereof fail not, and make due return of this Warrant, with your doings thereon to the Town Clerk, at the time and place of meeting as aforesaid.
Given under our hands, this fifth day of May, in the year one thousand eight hundred and ninety-nine.
GEO. T. TILL, EDWARD A. MAXFIELD, HEZEKIAH NEWCOMB, Selectmen of Swampscott.
A true copy. Attest :
RICHARD G. GILLEY, Constable.
Swampscott, Mass., May 5, 1899.
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TOWN DOCUMENTS.
[Feb. 23
Return on the Warrant.
Pursuant to the within Warrant to me directed, I have notified the inhabitants of the Town of Swampscott, to meet at the time and place and for the purpose herein mentioned, by posting up attested copies of said Warrant at the Town Hall, Depots, Post Office, and twelve other public and conspicuous places in said Swampscott, on Monday, the 8th day of May, in the year 1899, the posting of said notices being seven days before the time of said meeting.
RICHARD G. GILLEY,
Constable of Swampscott.
Special Town Meeting, May 15, 1899.
Meeting called to order at 7.30 P. M. Warrant read by the Clerk.
ARTICLE I. Moderator. On motion. Voted, That the Clerk cast one vote for Edmund Russell for Moderator. That vote hav- ing been cast, Edmund Russell was declared elected Moderator, and was qualified for that duty by the Town Clerk.
ART. 2. On motion of H. C. Bulfinch, it was voted, That the sum of five thousand dollars is hereby appropriated for the use of the Park Commissioners in settling claims and judgments, and for other park purposes, and the Treasurer of the Town is hereby authorized to borrow said five thousand dollars on the promissory note of the Town, payable not before 1907. .
Voted, At 7.50 P. M., that the meeting be dissolved.
Attest : MILTON D. PORTER, Town Clerk.
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RECORDS OF TOWN CLERK.
1900]
Regular Adjourned Town Meeting, May 15, 1899.
Called to order at 7.55 P. M.
Records of last meeting read and approved.
ART. 12. The Board of Selectmen, to whom was granted further time at the last meeting, in which to obtain the opinion of the Town Counsel on the subject embraced in this Article, submitted the following :
To the Selectmen of the Town of Swampscott ;
As to Article 12 of the Warrant for Annual Town Meeting, we understand that by vote of the Town an appropriation was made of $1,500 for the purpose of repairing the fire engine ; that a contract was made for repairs to that amount ; that afterward, by authority of the engineers, without a vote of the Town author- izing such action, repairs to the amount of $1,850 were made ; and that a bill for $1,850 and freights was approved by the Board of Engineers.
The authorities of the Town, knowing that these repairs had been made and the amount of the repairs, directed the shipment of the engine to Swampscott, and the Town is now in possession of the engine, together with all the repairs for which the Ameri- can Fire Engine Company now seeks compensation.
As a general rule, agents of the Town acting under a special appropriation for a special purpose, are not authorized to exceed that appropriation, but in this case, the Board of Engineers had authority without a vote of the Town to contract for repairs dur- ing the year to the amount of $100. We suppose the freight, also, is a legitimate charge. At any rate, without the payment of that the fire engine could not and would not have been returned to the Town.
A lawsuit, we are informed, is inevitable unless the matter is adjusted. Considering the fact (and we assume it is a fact) that a lawsuit will result from a refusal to pay or compromise the bill and the unavoidable cost of such lawsuit, taken together with the
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TOWN DOCUMENTS.
[Feb. 23
fact that the Town has the repairs and is not in a position where it is possible to reinstate the American Fire Engine Company, or to return to them their property, or place them in statu quo, we do not feel justified in recommending, and we do not recommend, the Town to go into litigation over the payment of this bill. We do think, under the circumstances, that some fair compromise ought to be effected ; and if the authority should be given your Board to make any settlement of the matter that might to your Board seem just, we should hope that an adjustment might be effected which would be far better and less expensive than a law- suit both to the Town and to the manufacturers.
If the matter is referred to your Board, it certainly should be with authority to pay the full bill or such part thereof as the Board on full consideration of the whole matter might deem expedient.
Respectfully submitted, NILES & CARR, Counsel for the Town.
Voted, That the sum of $400 be and is hereby appropriated for the purpose of paying the balance due American Fire Engine Company for repairs on the fire engine.
Voted, That the Board of Selectmen be added to the Sewer- age Committee.
ART. 15. The Selectmen made a report on this Article regarding change in the By-Laws in reference to Hawkers and Peddlers, which, on motion of J. F. Keefe, was laid upon the table.
ART. 33. Report of the Selectmen in reference to the drain- age of Norfolk avenue.
SWAMPSCOTT, MASS., May 15, 1899.
To the Citizens of Swampscott :
In regard to the drainage of Norfolk and Stetson Avenues, as referred to in the Selectmen's report, which your Board of Select-
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APPOINTED TOWN OFFICERS.
1 900]
men were instructed to investigate and report the most feasible plan of disposing of surface water at this point, we have expected some co-operation from the Trustees of the Stetson Land Com- pany, and have been unable up to the time of the last meeting to talk the matter over with said Trustees. We have since, however, met these gentlemen and agreed upon a plan which seemed to all concerned to be most advisable, to wit :
To lay a 24-inch drain pipe from the junction of Norfolk Avenue and Paradise Road to the large culvert at Burrill Street. The estimated cost for this was estimated at $1,200. This plan is strongly recommended by C. W. Gay, Engineer, who believes that this whole matter may be remedied by enlarging the outlet. As soon, however, as this plan was agreed upon, we received the following protest :
SWAMPSCOTT, May 1, 1899.
To the Honorable Board of Selectmen :
- GENTLEMEN,-We the undersigned, owners of property on line of brook below Burrill Street culvert, respectfully protest against the tapping of said culvert for purposes called for in Article 33 of the Town Warrant. Our reason for protest is, that the gathering together of a large body of water by catch-basins and pipes on the Stetson estate and dumping the same in a volume through a large pipe at Burrill Street culvert is a very unnatural way for the water to reach the sea, and will greatly damage our property and cause us great inconvenience.
ARTHUR W. ROWELL, For estate William Rowell. ISAAC S. LEADBETTER, CHARLES ROWELL, J. L. BROWN, JAMES S. TAYLOR, GEORGE T. MELZARD.
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TOWN DOCUMENTS.
[Feb. 23
The protest was referred to our counsel for an opinion, whose reply is as follows :
To the Selectmen of the Town of Swampscott :
We are in receipt of your inquiry as to whether the Selectmen under Article 33 of the Town Warrant have authority to lay a 24-inch pipe, 2,150 feet in length, discharging into a large culvert under Burrill Street. We infer from the form of your inquiry, and from the remonstrance, that the water thus discharged would pass through a natural watercourse into the sea. Under Chapter 50 of the Public Statutes, the Selectmen of the Town have the power to lay, make, and maintain main drains and common sewers not only through public streets, but through any private lands, and for this purpose land may be taken as for highways.
The difficulty in dealing with the proposed plan results from the discharge of these waters into a natural watercourse. All the owners of real estate bordering upon this brook, and all per- sons having rights therein, or in the waters that flow through this part of the brook, have a right to demand that the water shall flow in its natural volume and course. Even, if most of the water that it is proposed to gather up and conduct through this 24-inch pipe would naturally flow into and through that brook, we presume that the flow would be greatly accelerated, and the volume of water passing into the brook at Burrill Street, on the occasion of any great rainfall or thawing of snow, would be greatly increased. If that is so, all parties injured thereby would have a right to recover the damage they sustained of the Town, and this might involve the Town in damages at any time when an unusual and excessive flow of water occurred. Besides this, if the result that the remonstrants claim would follow the open- ing of this pipe into the brook, did actually follow, the parties injured, and perhaps any one of them, might obtain an injunction to restrain the improper use of this brook.
We pass no opinion as to whether any such danger would arise or not. We merely deal with the abstract question raised by your inquiry, and by the remonstrants, and considering the same, we think that the Town, before seriously interfering with the flow
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RECORDS OF TOWN CLERK.
1900]
of water in this brook, should have legislative authority therefor. But even legislative authority would not relieve the Town from liability to pay damage to any party injured by the interfence of the Town with the natural flow of water in the brook in the manner before described.
If the improvement proposed can be made without so precipi- tating waters into that brook as to cause the damage to riparian owners, then it is certainly lawful for the Selectmen to lay out and construct this drain, and to conduct the waters through the brook into the sea.
NILES & CARR, Counsel for the Town of Swampscott.
In view of the preceding facts, the Board are of the opinion that the best way to remedy this matter is to lay a 24-inch pipe from Norfolk Avenue and Paradise Road to the brook at the south- easterly side of New Ocean Street at an estimated cost of $2,600. We recommend this method if the Town wishes to do anything in the matter without the co-operation of the Stetson Land Co., which at present we have no assurance of.
In regard to the acceptance of Stetson Avenue, we cannot rec- ommend this until the surface water at this locality is dis- posed of.
GEORGE T. TILL, E. A. MAXFIELD, H. NEWCOMB,
Selectmen.
James H. Sisk, Esq., of the Stetson Land Company, being present, was granted permission by the meeting to speak on this question, and after somewhat extended remarks, in which he criticised the right of the abutters below Paradise Road to so obstruct the natural flow of the brook as to cause the present con- dition of the drainage from above, the meeting by a rising vote of 18 Yes, to 24 No, rejected the report of the Selectmen on this subject.
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TOWN DOCUMENTS.
[Feb. 23
ART. 34. Report of the Selectmen in relation to Atlantic Avenue.
SWAMPSCOTT, MASS., April 22, 1899. To the Citizens of Swampscott :
Your Selectmen to whom was referred that portion of the report of the Board of Selectmen of last year which relates to surface water, beg leave to report to the Town that they have viewed the premises and find that at the estate of A. F. Estabrook on Atlantic Avenue a remedy can be had by laying a 12-inch drain pipe through the property on the southerly side of Atlantic Avenue a distance of 200 feet and connecting both catch-basins already at this point with a 10-inch drain pipe, we believe this would be a satisfactory solution of this problem and recommend an appropriation of two hundred dollars ($200).
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