Foster v. Board of Park Commissioners of the City of Boston

• Decision Date: 07 September 1882
• Citation: 133 Mass. 321
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Dwight Foster & others v. Board of Park Commissioners of the City of Boston

133 Mass. 321

Dwight Foster & others v. Board of Park Commissioners of the City of Boston

Supreme Court of Massachusetts

September 7, 1882

Argued September 9, 1881 [Syllabus Material] [Syllabus Material]

Suffolk. Petition for a writ of certiorari to quash an order of the board of park commissioners of the city of Boston under the St. of 1875, c. 185, ^[*] assessing lands of the petitioners and others for special benefits received from the locating and laying out of a park. The record showed the following facts:

By an order of the city council, passed by vote of more than two thirds of each branch, and approved by the mayor on July 23, 1877, the treasurer was authorized to borrow, under the direction of the committee on finance, the sum of $ 450,000, "to be expended by the park commissioners in the purchase of not less than one hundred acres of land or flats" within certain boundaries in the Back Bay, so called; and by another order, approved on December 24, 1877, the park commissioners were authorized "to complete the purchase of any part or parts of the said tract, upon the terms provided in the said order, at such times as they shall deem expedient." By an order of the city council, approved November 21, 1879, the park commissioners were authorized, so far as the assent of the city council might be necessary thereto, to exercise their power of taking land for the proposed park. Before December 27, 1879, about one hundred and five acres of land and flats were purchased by the park commissioners, were conveyed to the city by deeds duly recorded, and were paid for by the city.

On December 18, 1879, the board of park commissioners passed an order, reciting that, in the opinion of the board, it was "desirable that a parcel of land belonging to the city of Boston" (then follows a description of the land and flats aforesaid) and certain parcels owned by other parties (likewise described) "should be taken and laid out as a public park," and directing notice to all persons interested "that this board intend to take the lands before mentioned, and lay out the same as a public park," and to assess a portion of the expense thereof upon the estates that will be benefited by "the said proposed laying out of said park," and that any objections "to said taking and laying out or to said assessment" would be heard on December 26, 1879.

On the day so appointed, a hearing was had accordingly, at which no one appeared to object to the taking and laying out as a public park of the lands described in the notice, but objections were made by several persons to assessments of betterments; and, on December 27, 1879, the board of park commissioners passed the following orders for taking the lands for a public park and assessing betterments therefor:

First. An order stating that the commissioners, "by the authority conferred upon us by the said act, and by the city council of said city of Boston, which has made the appropriation necessary to cover the estimated expenses of our action in the premises, have taken, and hereby do take and create as a public park or parks, the following described parcels of land, with all the buildings and fixtures thereon, situated in the said city of Boston, viz." (then followed descriptions of the lands,) "to have and to hold the said several parcels of land to the said city of Boston, its successors and assigns, to its and their sole use and benefit forever, agreeably to the provisions of said act."

Second. "Whereas, pursuant to an act of this board passed December 27, 1879, a public park or parks was located and laid out in the city of Boston at an estimated expense of $ 465,226.10; and whereas, in the opinion of the board, the estates named in the foregoing schedule have been benefited by the location or laying out of said park or parks, and due notice has been given of the intention of the board to assess betterments thereon; it is therefore hereby voted, that the estates named in the schedule be, and they hereby are, respectively charged with the sums therein severally set against them, such sums so assessed not exceeding one half the amount of the adjudged benefit to the estates by the said location and laying out."

The schedule prefixed to the last order is entitled "Schedule of assessments made by the board of park commissioners upon the estates benefited by the locating and laying out of a public park or parks in the city of Boston, as authorized and enacted by a resolve and act of the board, passed December 27, 1879, the expense of which was estimated at the time of the passage of said location and laying out at $ 465,226.10." The schedule consists of five columns, successively showing the number of each lot on a plan, its approximate area in feet, its owner, its boundaries, and the amount assessed upon it; and includes lands owned by the petitioners.

The respondents, in the answer originally filed by them to the petition for a writ of certiorari, stated that, in making the several assessments upon the estates described in the schedule, they assessed upon each estate one half of the amount which the board adjudged to be the whole benefit received by it from the locating and laying out of the park; and they were allowed to amend their record accordingly, by inserting in the schedule of assessments a column showing the whole amount of benefit and advantage that these estates had respectively received by said location and laying out, as then adjudged, by which it appeared that this amount was, as to each estate, exactly twice the amount of the assessment upon it.

Upon this record, the court decided that the St. of 1875, c. 185, did not authorize any assessment to be laid except for the amount of expenses which had either been actually paid, or had been so far incurred that the city was under a liability to pay from which it could not escape; and the case was ordered to stand for further hearing before a single justice, to give the respondents an opportunity to show that the city had paid or become liable for the amount assessed. 131 Mass. 225, 230.

A further hearing was accordingly had before a single justice, at which it was agreed that the respondents had, under the orders of the city council, previously to December 27, 1879, expended on account of the park the sum of $ 551,454.06, of which sum $ 439,690.90 was expended for the purchase of land, and $ 108,015.42 for filling, grading, and contingent expenses, and $ 3747.74, for surveying and plans. It further appeared from a plan used at the hearing, that, when the assessment was laid, certain avenues had been filled with loose gravel and ashes, the upper surface of which was from four to ten feet below the grade finally intended for the avenues, and was level, but not smoothed or in any way or respect prepared for public use; that the area filled was but a small portion of the entire territory, and that the filling done was pursuant to a plan previously filed. There were also creeks and mud flats over which the tide ebbed and flowed, and outside of these creeks, except where the avenues had been filled as above stated, the land was a sedgy marsh in its natural state, covered occasionally by the high tide.

At the request of both parties, the case was reserved for the consideration of the full court, and for the entry of such order or judgment as law and justice might require.

Petition dismissed.

D. Foster & H. D. Hyde, for the petitioners.

H. W. Putnam, for parties having similar interests, was permitted to file a brief in support of the petition.

E. P. Nettleton, for the respondents.

Field, J. C. Allen, J., did not sit.

OPINION

Field, J.

The petitioners ask that the order of the park commissioners laying an assessment may be quashed, on this ground among others, that at the time of the passage of the order the park was not in any sense constructed so as to be fit for public use as a park. It appears, indeed, by the record of the park commissioners, that a park had been located and laid out; but the petitioners contend that it is competent for them to show by evidence that the park had not in fact been laid out within the meaning of the words "laying out" contained in the statute, and that the facts agreed show this; that the taking of the land and calling it a public park are not laying out a park within the meaning of the statute, and that the assessment for benefits cannot be made before the order laying out a park has been executed by the construction of the park.

The St. of 1875, c. 185, however difficult it may be to construe, is largely made up of words and clauses that have been used in previous statutes relating to similar subjects. The St. of 1874, c. 97, which is "An act to provide for a public park in the city of Somerville," is, however, more explicit than the St. of 1875, c. 185, in the matter of assessment for benefits. Section 3 provides that, "at any time within two years after the land is purchased or taken under this act, the city council" may assess "a proportional share of the cost of the land so purchased or taken, and of the expense of laying out, grading and making said park; but in no case shall the assessment exceed one half of the amount of such adjudged benefit and advantage. Nor shall the same be made until the work of laying out, grading and making said park is completed." This statute was held to be constitutional in Holt v. City Council of Somerville, 127 Mass. 408.

The St of 1871, c. 382, § 1, provides that, "at any time within two years after any street, highway or other way is laid out, altered, widened, graded or discontinued," the board of city or town officers may assess "a proportional share of the expense of laying out, alteration, widening, grading or discontinuance; but in no...