2. RECORDS 9(1) WRONGFUL REGISTRA- | river. That clause conveyed to the plaintiff TION-RIGHT OF ACTION. the grantor's rights in that estuary, but it did not convey to the plaintiff the right to be compensated for the loss of the land here in question. In such case the right of action to be compensated for the loss of land did not pass to plaintiff by virtue of the subsequent deed including the parcel erroneously registered as the land of another, "together with all our rights in said channel Island End river, if any," on the ground that the land erroneously registered as land of another was a part of a dam across such river. [Ed. Note. For other cases, see Records, Dec. Dig. 9(1).] Report from Superior Court, Suffolk County; Franklin G. Fessenden, Judge. Action by Benjamin F. Briggs against Elmer A. Stevens, Treasurer of the Commonwealth. Verdict for defendant, and case reported. Judgment ordered and entered on the verdict. B. F. Briggs, of Boston, pro se. Henry C. Attwill, Atty. Gen., and H. Ware Barnum, Asst. Atty. Gen., for respondent. LORING, J. [1] This is an action of contract under R. L. c. 128, § 95, to recover compensation out of the assurance fund created under that act, for the wrongful registration of a parcel of land as the land of the New England Structural Company. We do not find it necessary to consider the many important and interesting questions which were argued at the bar. The short answer to the plaintiff's claim is that when the parcel of land in question was erroneously registered (if it was erroneously registered) the plaintiff was not the owner of it. The decree of registration was made by the land court on December 14, 1906, and was received for transcription at the registry of deeds January 26, 1907. At that time and up to April 15, 1907, the plaintiff was a stranger to this piece of land. On April 15, 1907, he became grantee in a deed which purported to convey it to him (inter alia). If a right of action vested in anyone it vested in the person who owned the land when the erroneous registration was made and that is not affected by a subsequent deed of the land. In this respect the case at bar stands on all fours with Walker v. Oxford Woolen Mfg. Co., 10 Metc. 203; Moore v. Boston, 8 Cush. 274; Isele v. Schwamb, 131 Mass. 337; Patten v. Fitz, 138 Mass. 456. [2] There is nothing in the second contention made by the plaintiff, namely, that the right to be compensated for the loss of the land passed to the plaintiff by virtue of the subsequent deed. The first argument of the plaintiff in that connection is that the description of the land conveyed including the parcel of land here in question is followed by these words: "To gether with all our rights in said channel Island End river, if any." This contention is based on the fact that the land erroneously registered as land of the Structural Company was part of a dam across Island End In support of his argument on this second contention, the plaintiff relies on Putnam v. Story, 132 Mass. 205. In that case a homestead which should have been sold was with the consent of the remaindermen occupied by the life tenant, and one of the remaindermen in payment of a debt conveyed to a creditor his interest in that land, describing it. that case the land ought to have been money but it was land. It could not have been held that a conveyance of the remaindermen's interest in the land did not pass his right to In the proceeds when the sale which ought to have taken place before did take place. That does not help the plaintiff in his con tention here. We have examined all the other authorities cited by the plaintiff and find nothing in them that requires notice. In accordance with the terms of the report, judgment is to be entered on the ver dict. So ordered. (224 Mass. 93) LYNCH v. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. May 17, 1916.) STREET RAILROADS 114(13) USE OF STREETS-COLLISIONS-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY. Evidence in an action for injury in a collision between an automobile ladder truck of a fire department, in charge of plaintiff, while making a demonstration run, with defendant's electric car, at the intersection of streets, held to show plaintiff's contributory negligence, precluding his recovery. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 248; Dec. Dig. 114(13).1 Exceptions from Superior Court, Suffolk County; Frederick Lawton, Judge. Action by William M. Lynch against the Boston Elevated Railway Company. Verdict directed for defendant, and plaintiff excepts. Exceptions overruled. Article 3, § 1, of the Street Traffic Regulations was as follows: "Police, fire department, emergency repair wagons, shall have the right of way in any street, and through any procession." * Cronin & Cronin, Jos. P. Walsh, and Wm. J. McCarty, all of Boston, for plaintiff. E. P. Saltonstall and R. S. Pattee, both of Boston, for defendant. DE COURCY, J. The plaintiff was injured in a collision between an automobile ladder truck of the Boston fire department and an electric car of the defendant, at the junction of P street and Third street in South Boston. These streets cross each other at right angles. In P street (which runs north and south) there is a double line of car tracks. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The first rail of the north-bound track is eight feet six inches from the easterly curbstone, and ten feet eleven inches from the crosswalk of Third Street. The ladder truck was about thirty-six feet long, and weighed four and a half tons. An agent of the manufacturer was instructing the men how to handle it, and, at the time of the accident, was standing on the right hand running board. Two members of the fire department were standing on the left running board. The plaintiff, Captain Lynch, was in charge of the truck, and was seated on the front seat; and at his right was sitting the driver Callahan, who was at the wheel. KILGOUR v. GRATTO. (224 Mass. 78) (Supreme Judicial Court of Massachusetts. 1. MUNICIPAL CORPORATIONS 666-BUILD town, is a building where electric power is used A "factory," within the building code of a in aid of manufacturing processes, though only to a small extent. in collisions of vehicles at intersecting streets, make the issue of the plaintiff's due care one for the determination of the jury. Halloran v. Worcester Cons. St. Ry., 192 Mass. 104, 78 N. E. 381; Driscoll v. Boston Elev. Ry., 112 N. E. 219 (April 12, 1916). But whether the plaintiff be judged by his own conduct or by that of the driver under his charge and control (see Shultz v. Old Colony St. Ry., 193 Mass. 309, 323, 79 N. E. 873, 8 L. R. A. [N. S.] 597, 118 Am. St. Rep. 502, 9 Ann. Cas. 402), we cannot say that the record shows evidence which would warrant a jury in finding that he exercised reasonable care; and he is precluded from recovering under the authority of cases like Hurley v. West End St. Ry., The truck proceeded westerly along the 180 Mass. 370, 62 N. E. 263, and Ferguson v. right hand side of Third street at a speed of Old Colony St. Ry., 204 Mass. 340, 90 N. E. from ten to fifteen miles an hour. The build-535. Article 3, section 1, of the Street Traffic ing at the southeast corner of Third and P Regulations, even if applicable under the cirstreets extended to the line of the sidewalk, cumstances, does not help the plaintiff. and, until he approached said crosswalk, Exceptions overruled. would obstruct the plaintiff's view to the left, of any approaching north-bound car on P street. Presumably he could not hear the noise made by a moving car, because the large brass fire bell was being rung continuously. An electric car was liable to approach Third street on the nearer track at any time; and the length of the truck would make it difficult to avoid a collision either by turning into P street or by crossing the track in front of such car. The situation was peculiarly one where reasonable care for their safety called upon the plaintiff and the driver to look to the left along P street for an ap proaching car at the earliest opportunity, and to slow down the truck or otherwise have it under control for a quick stop. There was no occasion for hurry, and nothing to distract their attention. Yet there is no evidence that any of the men looked until the wheels of the truck were on the crosswalk or about eleven feet from the track. The front of the electric car was then a car's length or less away according to Callahan, or twenty-five or thirty feet on the plaintiff's testimony; and no one places it more than two cars' length away. Apparently every effort then was made to stop the truck; and the plaintiff testified that if they had six inches more the truck would have stopped without hitting the side of the car. This only emphasizes the fact that the failure to look seasonably contributed to the accident. It is apparent from the plan used at the trial, that when the plaintiff was twenty feet from the first rail, his view of the track along P street in the direction of the approaching car was wholly unobstructed; and that even be- For other definitions, see Words and Phrases. fore reaching the line (extended) of the build-First and Second Series, By-Law.] ing, he had a gradually increasing view along the track. It may be assumed that there was evidence for the jury of the motorman's negligence. As a general rule, the facts disclosed [Ed. Note.-For other cases, see Municipai Corporations, Cent. Dig. § 1442; Dec. Dig. 666. For other definitions, see Words and Phrases, First and Second Series, Factory.] 2. MUNICIPAL CORPORATIONS 621-BuildING PERMITS-STATUTE-BY-LAW." St. 1913, c. 655, embodying the earlier law (Rev. Laws, c. 104), and providing that every town that accepts the provisions of the section may, by ordinances or by-laws, regulate the materials, area, location, and use of buildings within its limits, does not authorize the passage by towns of by-laws subjecting the right of everybody to construct a factory building to the absolute discretion of local officers, so that the selectmen of the town of Lexington were not authorized to refuse a permit to build a onestory building of cement and brick, to be used as a drafting room and mechanical laboratory, to contain machinery for the making of models, and devices for testing, developing, and illustrating inventions, power to be furnished by an electric motor, since a "by-law," as used in the statute, means a general rule affording some standard of conduct to the landowner, so that he may know where to locate and how to design and construct his proposed building, and some principle to direct the licensing board in issuing or denying permits. Corporations, Cent. Dig. §§ 1363-1369; Dec. [Ed. Note.-For other cases. see Municipal Dig. 621. Report from Supreme Judicial Court, Middlesex County. Petition for writ of mandamus by Dwight F. Kilgour against William Gratto. Case reported. Writ to issue. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Robert P. Clapp and Hervey W. King, both of Boston, for petitioner. S. R. Wrightington, of Boston, for respondent. RUGG, C. J. This is a petition for a writ of mandamus to compel the building inspector of the town of Lexington to issue a permit for the construction of a one-story building of cement blocks and brick upon the petitioner's land in Lexington, to be used as a drafting room and mechanical laboratory or workshop, to contain some small machinery for the making of models and devices for testing, developing and illustrating his inventions; but manufacturing is to be carried on to a slight extent only, the maximum of workmen being four. Power is to be furnished by an electric motor. The department to which the petitioner's inventive skill is directed is not stated. It has been found in substance that as a rule there is greater danger of fire, explosion or other like accident in a building used as a factory where a dynamo for motive power is set than in other buildings such as dwelling houses, with reference not only to the building itself but to other buildings in the vicinity, and that sometimes danger to the health of dwellers in neighboring buildings may be increased by the location of a factory, beyond that which would be caused by a dwelling house, and that there are other buildings mostly of wood in close proximity to the building proposed by the petitioner. There is no finding as to the danger in any particular respect which the petitioner's proposed building would be likely to cause. [1] The town of Lexington accepted the provisions of R. L. c. 104, which was the corresponding provision of the earlier law now embodied in St. 1913, c. 655. Section 1 of that act, so far as here material, is in the margin, the additions to the words of the earlier statute being in italics. Pursuant to the authority of the latter statute, the town adopted an elaborate and comprehensive code of building by-laws. The pertinent provisions of that code 2 in brief are that no building shall be erected for use as a factory without a permit countersigned by the selectmen. The petitioner's proposed building 1 "Every city, except Boston, and every town which accepts the provisions of this section or has accepted the corresponding provisions of earlier laws may, for the prevention of fire and the preservation of life, health and morals, by ordinances or by-laws not inconsistent with law and applicable throughout the whole or any defined part of its territory, regulate the inspection, materials, construction, alteration, repair, height, area, location and use of buildings and other structures within its limits, except "Factory. Any premises where steam, water or other mechanical power is used in aid of any manufacturing process there carried on. "Article 10. Section 5. No buildings to be used as a factory, or for the manufacture of explosives, or for chemical or rendering works or stable in which more than four horses are kept, shall be erected, and no steam or gas engine, dynamo or boiler for motive power, shall be set or erected or moved without a permit from the inspector, countersigned by the board of selectmen, and such permit shall not be granted until after a public hearing before the selectmen. • is a factory within the Code, because electrical power is to be used in aid of manufacturing processes to a small extent. The plans and detailed descriptions of the petitioner's proposed building in all structural respects conform fully to the requirements of the bylaws, which in this regard contain many minute regulations. But the selectmen refuse to grant the permit and no reason therefor is assigned in the record. The effect of the by-laws is to vest in the selectmen an absolute and uncontrolled discretion whether to grant or to refuse a permit for the construction of a building like that proposed by the petitioner anywhere within the limits of the town. [2] The business proposed to be carried on by the petitioner is as harmless as can well be imagined of any manufacturing enterprise. It is a lawful business. The use of inventive skill is a close approach to the exercise of a natural right. In essence it is simply working toward useful ends according to the measure of one's innate endowments. The material and structure of the building confessedly satisfy the exacting requirements of the by-laws. The motive power proposed to be installed commonly is supposed to be as clean, healthful and free from danger under proper regulations as any now available. The construction and use of factories for manufacture at some place are necessities of present conditions of life. The question presented is whether the Legislature has authorized the passage by towns of by-laws which subject the right of everybody to construct a factory building to the unrestrained permission of local officers. While the terms of St. 1913, c. 655, in some respects are broader than those of earlier statutes, in that under it the municipality may enact by-laws for the preservation of "health and morals" and may regulate the "repair, height, area, location," of buildings, they still must confine their reg ulations in this respect to "by-laws." Bylaw, as applied to the subject-matter, means a general rule. It should afford some standard of conduct to the landowner so that he may know where to locate, how to design, construct, equip and otherwise prepare for use his proposed building, and some principle to direct the licensing board as to the exercise of its judgment and discretion in issuing or denying the permit. A provision that the right to erect a factory, however perfect in design, noncombustible in material, safe and sanitary in equipment, cannot be exercised without permission from local officers not enlightened, directed or curbed by any established principle, is not in a proper sense a by-law as that word is used in this statute. of course a wide power exists as to the regulation of harmful and noxious occupations and the location and erection of buildings for uses which either are inherently or easily may become nuisances. It is to be presumed (224 Mass. 28) BURROUGHS v. COMMONWEALTH. 1. STATES 191(1)-SUITS AGAINST RIGHT [Ed. Note.--For other cases, see States, Dec. Dig. 191(1).] 2. STATES 191(1)-SUITS AGAINST-STAT UTE-CONSTRUCTION. Rev. Laws, c. 201, permitting enforcement in the courts of claims against the commonwealth, cannot be stretched to include damages for an ordinary tort committed by an officer or employé of the commonwealth, in the performance of duties prescribed by law. [Ed. Note. For other cases, see States, Dec. Dig. 191(1).] 3. WOODS AND FORESTS 7-CONSTRUCTION OF STATUTE-PUBLIC WORK. Resolve of 1915, c. 2, authorizing the state forester to provide employment for needy persons in the improvement and protection of forests and of any other public work which may, in his opinion, be proper, does not authorize the prosecution of work upon private lands for the benefit of private owners. [Ed. Note.-For other cases, see Woods and Forests, Dec. Dig. 7.] 4. WOODS AND FORESTS 7-CONSTRUCTION OF STATUTE-STATE FORESTER. that the legislative delegation of discretionary power respecting such buildings and businesses is broad. The keeping of swine (Quincy v. Kennard, 151 Mass. 563, 24 N. E. 860), the blasting of rock (Com, v. Parks, 155 Mass. 531, 30 N. E. 174), the business of storing rags in thickly settled parts of a city (Com. v. Hubley, 172 Mass. 58, 51 N. E. 448, 42 L. R. A. 403, 70 Am. St. Rep. 242), the location of livery stables (Newton v. Joyce, 166 Mass. 83, 44 N. E. 116, 55 Am. St. Rep. 385; Reinman v. Little Rock, 237 U. S. 171, 35 Sup. Ct. 511, 59 L. Ed. 900), the establishment of dairy and cow stables within a great city (Fischer v. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. Ed. 1018), and the construction of garages (Storer v. Downey, 215 Mass. 273, 102 N. E. 321), all have been held to relate to such matters as may. be within the discretionary supervision of a local board. But the statute has been held not to allow the enactment of ordinances or by-laws vesting entire and unregulated discretion in local officers respecting the construction, alteration and use of all buildings (Newton v. Belger, 143 Mass. 598, 10 N. E. 464), the erection and use of buildings for general manufacture (Winthrop v. New England Chocolate Co., 180 Mass. 464, 62 N. E. 969), and the erection of buildings for mercantile uses (Goldstein v. Conner, 212 Mass. 57, 98 N. E. 701). The case Under Acts 1904, c. 409, § 2, prescribing at bar is indistinguishable from these, and is that it shall be his duty to promote the perthe duties of the state forester, and providing governed by them. The change in the statute petuation, extension, and proper management since their decision does not touch this as- of the forest lands of the commonwealth, both pect of the matter. The instant by-law does public and private, that he may, upon suitable not undertake to regulate the location of fac- request of owners of forest lands, give aid or advice, that he may publish the particulars and retories by any general rule. The principles sults of any examination and advice given, and controlling this and kindred subjects have that the recipient of such aid or advice shall be been fully discussed in recent cases and need the right to give "aid or advice" confers no auliable for necessary expenses of the state forester, not be restated. Com. v. Maletsky, 203 Mass. thority to go into the business of clearing for241, 89 N. E. 245, 24 L. R. A. (N. S.) 1168; est lands for individual owners, and the duty Belmont v. New England Brick Co., 190 Mass. to "promote the perpetuation and management 442, 77 N. E. 504; Durgin v. Minot, 203 Mass. not include the carrying out of the advice, as of forest lands, both public and private," does 26, 89 N. E. 144, 24 L. R. A. (N. S.) 241, 133 the statute contemplates encouragement of busiAm. St. Rep. 276; Com. v. McGann, 213 Mass. ness of forestry in the hands of private own213, 100 N. E. 355; Burke v. Holyoke Boarders, not the prosecution of it by the state forester on lands privately owned. of Health, 219 Mass. 219, 106 N. E. 976; [Ed. Note.-For other cases, see Woods and Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Forests, Dec. Dig. 7.] 1064, 30 L. Ed. 220; Hadacheck v. Sebastian, 239 U. S. 394, 36 Sup. Ct. 143, 60 L. Ed. The trend of decisions in other jurisdictions goes at least as far and perhaps beyond any of our own adjudications in restricting the validity of similar by-laws. Montgomery v. West, 149 Ala, 311, 42 South. 1000, 9 L. R. A. (N. S.) 659, 123 Am. St. Rep. 33, 13 Ann. Cas. 651; Sioux Falls v. Kirby, 6 S. D. 62, 60 N. W. 156, 25 L. R. A. 621; Richmond v. Dudley, 129 Ind. 112, 28 N. E. 312, 13 L. R. A. 587, 28 Am. St. Rep. 180; Boyd v. Frankfort, 117 Ky. 199, 77 S. W. 669, 111 Am. St. Rep. 240: State v. Tenant, 110 N. C. 609, 14 S. E. 387, 15 L. R. A. 423, 28 Am. St. Rep. 715. See 2 Dillon on Municipal Corporations (5th Ed.) $ 596, 598, 600. Writ to issue. Appeal from Superior Court, Suffolk County; William Cushing Wait, Judge. Action by George Burroughs against the Commonwealth of Massachusetts. From a judgment for defendant, sustaining a demurrer to the petition, plaintiff appeals. firmed. Af Richard W. Hale and John M. Maguire, both of Boston, for appellant. Henry C. Attwill, Atty. Gen., Arthur E. Seagrave, Asst. Atty. Gen., and Chas. W. Mulcahy, of Boston, for the Commonwealth. RUGG, C. J. This is a petition against the commonwealth, brought under R. L. c. 201. It alleges in substance that the plaintiff sustained damages to his property by fire set For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and negligently permitted to escape from their control by men employed by the state forester and engaged under his direction in cutting cord wood and clearing brush under the assumed authority of Resolves of 1915, for the private benefit of one Streeter, the owner of land adjacent to the plaintiff's land, who was to pay for the work done at so much per cord of wood cut. In substance the petition sets out an ordinary cause of action, sounding in negligence of servants in the course of the performance of their duties for their master. The commonwealth demurred on the general ground that no cause of action is set forth in the petition, for the redress of which jurisdiction is given by the statute. [1] It is familiar law that the sovereignty can be impleaded in its own courts only in the manner, to the extent and for the causes expressed in the statute granting consent thereto. McArthur Bros. Co. v. Com., 197 Mass. 137, 83 N. E. 334. shall be spent upon the improvement and protection of forests and in any other public work which may in the opinion of the state forester be proper." Manifestly this language does not authorize the prosecution of work upon private lands for the benefit of private owners, but only upon that which may be described rightly as connected with "public work." Resolves of 1915, c. 23, refers to chapter 2, and adds nothing to it except an appropriation. The general duties of the state forester are set out in St. 1904, c 409, § 2, in these words (so far as here material): * * * "It shall be the duty of the state forester to promote the perpetuation, extension and proper management of the forest lands of the commonwealth, both public and private. He may upon suitable request give to any person owning or controlling forest lands aid or advice in the management thereof. The state forester shall have the right to publish the particulars and results of any examination or investigation made by him or his assistants as to any lands within the commonwealth, and the advice aid or advice. Any recipient of such aid or adgiven to any person who has applied for his vice shall be liable to the state forester for the necessary expenses of travel and subsistence incurred by him or his assistants." It is too plain for discussion that the right to give "aid or advice" confers no authority to go into the business of clearing forest lands or cutting wood or timber for individual owners. The duty to "promote the per [2] It has been held that while the terms of the statute now embodied in R. L. c. 201, are "full and comprehensive, it is not to be interpreted as imposing any new obligation upon the commonwealth, or as creating a new class of claims for which a sovereignty never has been held responsible, but 'to provide a convenient tribunal for the determination of claims of the character which civilized governments have always recogniz-petuation, extension and proper management ed, although the satisfaction of them has been usually sought by direct appeal to the sovereign, or, in our system of government, through the Legislature.'" Nash v. Com., 174 Mass. 335, 338, 54 N. E. 865, 866. In view of this decision, the statute cannot be stretch-contemplates encouragement of that business ed to include damages for an ordinary tort in the hands of private owners, not the prose committed by an officer or employee of the commonwealth in the performance of duties prescribed by law. It expressly was adjudged in Murdock Parlor Grate Co. v. Com., 152 Mass. 28, 24 N. E. 854, 8 L. R. A. 399, that demands founded on the neglect or tort of ministerial officers engaged as servants in the performance of duties which the state as a sovereign has undertaken to perform, have never been recognized as the foundation of obligations. So far as the petition sets forth work of a public nature, it is concluded adversely to the plaintiff by these decisions. of forest lands of the commonwealth, both public and private," does not include the carrying out of advice, the execution of plans directed to that end, or the conduct of the The statute general business of forestry. cution of it by the state forester on lands privately owned. Doubtless there was public work to which it may have been assumed that the appropriations might be applied. See, for example, St. 1909, c. 263, St. 1905, c. 381, St. 1907, c. 521, St. 1915, c. 124, as to the gypsy moth, R. L. c. 28, §§ 23-29, as amended by St. 1915, c. 162, as to the public domain, St. 1914, c. 720, as to state forests, and the statutes establishing the Wachusett, Sugar Loaf and Graylock mountain reservations, and other public parks. [3, 4] Liability is urged on the ground that would be possible for the commonwealth unIt is not necessary to consider whether it the work here alleged is not of a sovereign order the Constitution to appropriate money public nature in any proper sense, but is in the nature of private business undertaken by the commonwealth as it might be by any private contractor. It is plain, however, that there is no law authorizing the state forester to engage in the general business of cutting cord wood or clearing brush for private owners. Resolves of 1915, c. 2, directed the state forester "to provide employment for needy persons deemed by him to be worthy thereof. * # The moneys authorized to be spent under the provisions of this resolve raised by taxation for the purpose of entering into such a field of private business. See Lowell v Boston, 111 Mass. 454, 15 Am. Rep. 39; Opinions of Justices, 155 Mass. 598, 30 N. E. 1142, 15 L. R. A. 809; Id., 182 Mass. 605, 66 N. E. 25, 60 L. R. A. 592; Id., 204 Mass. 607, 91 N. E. 405, 27 L. R. A. (N. S.) 483; Id., 211 Mass. 624, 98 N. E. 611, 42 L. R. A. (N. S.) 221. The statutes do not authorize the business enterprise under the management of the state which this aspect of the petition avers. |