Baizen v. Board of Public Works
Baizen v. Board of Public Works
Opinion of the Court
This is a petition for a writ of mandamus brought by the owners of a parcel of land lying partly in Everett but mostly in Chelsea to compel the board of public works of the city of Everett (board) to supply water service to the entire parcel. The board has appealed from a final judgment that a writ issue as prayed for. The order for judgment recites that the case was heard on the petition and the answer (compare Taylor v. Haverhill, 316 Mass. 380, 381 [1944]) and incorporates by reference therein a plan certified under the provisions of S.J.C. Rule 1:06, 351 Mass. 735.
The facts made to appear from the pleadings and the plan may be summarized briefly. The parcel in question lies on the northerly side of Dartmouth Street, which is an accepted street on the Everett side of the city line but possibly still a private way on the Chelsea side of the line. It has a frontage of 15.84 feet on Dartmouth Street on the Everett side and a frontage of 164.16 feet (91.2 percent of the total) on the Chelsea side. The portion of the parcel lying in Everett has an area of 315 square feet; the portion in Chelsea an area of approximately 13,443 square feet (97.7 percent of the whole). The petitioners propose to build, entirely on the Chelsea portion of the parcel, a nine unit apartment building. On or about September 30,1971, they made application to the board for water service to their proposed building.
The board has taken the position that it is prohibited by c. 18, § 2, of the Revised Ordinances of the City of Everett (1957)
Everett, was set off from Malden and incorporated as a town by St. 1870, c. 66, § 1. The town was authorized by St. 1871, c. 205, § 1, “to lay, construct and maintain, within .. . [its] limits . . . such pipes, aqueducts and structures in connection with the water works or aqueducts of the city of Charlestown, or the towns of Malden, Melrose and Medford, as may be requisite for the purpose of supplying water to the inhabitants of said town of Everett, for the extinguishment of fires and for other purposes” (emphasis supplied).
The judgment is reversed, and judgment is to be entered dismissing the petition.
So ordered.
The appeal was entered in this court. G. L. c. 211A, § 10(c), inserted by St. 1972, c. 740, § 1.
We have not been informed of the locations of the nearest public water mains in either Everett or Chelsea.
“The board of public works shall distribute and control the use of the water furnished to the city; shall install and maintain water meters in accordance with
We can and do take judicial notice of both types of provisions. G. L. c. 233, §74. Framingham Homes, Inc. v. Dietz, 312 Mass. 471, 473 (1942). Grant v. Aldermen of Northampton, 316 Mass. 432, 435 (1944). Salisbury Water Supply Co. v. Salisbury, 341 Mass. 42, 44(1960).
Later provisions relative to Everett’s water supply system which are of no present moment but which may be of historical interest are to be found in the following: St. 1872, c. 52; St. 1873, c. 68; St. 1884, c. 46; St. 1886, cc. 280 and 351; St. 1891 c. 149; St. 1892, c. 189; St. 1895, c. 488, § 7. Following the study commanded by St. 1893, c. 459, Everett became (by virtue of St. 1895, c. 488, § 3) part of what is now the metropolitan water district (G. L. c. 92, § 10, as most recently amended).
See Ray v. Mayor of Everett, 328 Mass. 305, 306-307 (1952); Everett v. Curnane, 329 Mass. 490, 491, 492 (1952). We were advised at oral argument that the 1892 charter (as from time to time amended) is still in effect.
Compare the situation found in Strachan v. Mayor of Everett, 326 Mass. 659 (1951). Á study of §§ 2,10, 22, 26, 29, 35 and 39 of the charter (St. 1892, c. 355) suggests that the ordinance quoted in note 4 of this opinion may gó no further than to provide for the establishment, and generally define the duties, of the particular board which is to have responsibility for the care and management of the city’s water supply system. Compare the somewhat similar provisions found in G. L. c. 40, § 21 (7), andin G.L. c.92, §§ 27,28and30.
We are not here concerned with any such sale. See, as to the present law, G. L. c. 40, § 38, andG. L. c. 92, § 10(4), each as amended.
Contrast the statutes considered in Woodbury v. Marblehead Water Co. 145 Mass. 509 (1888), and Merrill v. Revere, 211 Mass. 468 (1912).
Reference
- Full Case Name
- Gerald Baizen & another, trustees v. Board of Public Works of Everett
- Cited By
- 1 case
- Status
- Published