174 Mass. 476 (1899), Attorney General v. Williams

Citation174 Mass. 476, 55 N.E. 77
Opinion JudgeKNOWLTON, J.
Attorney[55 N.E. 77] Elder, Wait & Whitman, for plaintiff. A. E. Pillsbury, for defendants.
Case DateOctober 30, 1899
CourtSupreme Judicial Court of Massachusetts

Page 476

174 Mass. 476 (1899)

55 N.E. 77




Supreme Judicial Court of Massachusetts, Suffolk.

October 30, 1899


Page 477

[55 N.E. 77] Elder, Wait & Whitman, for plaintiff.

A. E. Pillsbury, for defendants.



This is an information by the attorney general to prevent the erection and maintenance of that portion of a building on Copley Square, in the city of Boston, which is above the limit of height prescribed by St. 1898, c. 452. Section 1 of this statute is as follows: 'Any building now being built, or hereafter to be built, rebuilt or altered in the city of Boston upon any land abutting on Saint James avenue between Clarendon street and Dartmouth street, or upon the land at the corner of Dartmouth street and Huntington avenue, now occupied by the Pierce Building, so called, or upon land abutting upon Dartmouth street now occupied by the Boston Public Library Building, or upon land at the corner of Dartmouth street and Boylston street now occupied by the New Old South Church Building, may be completed, built, rebuilt or altered to the height of ninety feet and no more; and upon any land or lands abutting on Boylston street between Dartmouth street and Clarendon street may be completed, built, rebuilt or altered to the height of one hundred feet and no more: provided however that there may be erected on any such building above the limits hereinbefore prescribed, such suitable towers, domes, sculptured ornaments and chimneys as the board of park commissioners of said city may approve.' Section 2 repeals St. 1896, c. 313, and St. 1897, c. 379, so far as they limit the height of buildings erected along the line of streets, parkways, or boulevards bordering on public parks; section 3 provides for the payment of damages to any person owning or having an interest in an uncompleted building begun before the 14th day of January, 1898, which is affected by the act; and section 4 provides for compensation to all persons sustaining damages to their property by reason of the limitation of the height of buildings prescribed by the act. The case is reported upon the information, demurrer, pleas, and certain facts found at the hearing on the pleas.

The first question raised by the report is whether the statute is constitutional. The streets mentioned in the statute are adjacent to Copley Square. On the case as now presented, we must assume that Copley Square, in the language of the information, 'is an open square and a public park, intended for

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the use, benefit, and health of the public, and is surrounded by buildings devoted to religious, charitable, and educational purposes, some of which contain books, manuscripts, and works of art of great value, many of which are in their nature irreplaceable.' Regulations in regard to the height and mode of construction of buildings in cities are often made by legislative enactments, in the exercise of the police power, for the safety, comfort, and convenience of the people, and for the benefit of property owners generally. The right to make such regulations is too well established to be questioned. Salem v. Maynes, 123 Mass. 372; Inhabitants of Watertown v. Mayo, 109 Mass. 315; Sawyer v. Davis, 136 Mass. 239. See Talbot v. Hudson, 16 Gray, 417. In view of the kind of buildings erected on the streets about Copley Square, and the uses to which some of these buildings are put, it would be hard to say that this statute might not have been passed in the exercise of the police power, as other statutes regulating the erection of buildings in cities are commonly passed. But it differs from most statutes relative to this subject, in providing compensation to persons injured in their property by the limitations which it creates. In this respect it conforms to the constitutional requirements for the taking of property by the right of eminent domain. Looking to all its provisions in connection with the place to which they apply, it seems to have been intended as a taking of rights in property for the benefit of the public who use Copley Square. It adds to the public park rights in light and air, and in the view over adjacent land above the line to which buildings may be erected. These rights are in the nature of an easement created by the statute and annexed to the park. Ample provision [55 N.E. 78] is made for compensation to the owners of the servient estates. In all respects the statute is in accordance with the laws regulating the taking of property by right of eminent domain, if the legislature properly could determine that the preservation or improvement of the park in this particular was for a public use. The uses which should be deemed public in reference to the right of the legislature to compel an individual to part with his property for a compensation, and to authorize or direct taxation to pay for it, are being enlarged and extended with the progress of the people in education and refinement. Many things which a century

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ago were luxuries, or were altogether unknown, have now become necessaries. It is only within a few years that lands have been taken in this country for public parks. Now the right to take land for this purpose is generally recognized and frequently exercised. Foster v. Commissioners, 133 Mass. 321; Shoemaker v. U. S., 147 U.S. 282, 13 S.Ct. 361. Many statutes have been passed in this commonwealth allowing taxation for purposes affecting the health, comfort, pleasure, and recreation of the people, and thus conducing to their welfare. In Kingman v. City of Brockton, 153 Mass. 255, 26 N.E. 998, the court said, referring to a statute authorizing the raising of money by taxation for the erection of a memorial hall: 'The statute * * * may be vindicated on the same ground as statutes authorizing the raising of money for monuments, statues, gates, or arches, celebrations, publication of town histories, parks, roads leading to points of fine scenery, decorations upon public buildings, or other public ornaments or embellishments designed merely to promote the general welfare, either by providing for fresh air, a public recreation, or by educating the public taste, or enforcing sentiments of patriotism or respect for the memory of worthy individuals. The reasonable use of public money for such purposes has been sanctioned by several different statutes, and the constitutional right of the legislature to pass such statutes rests upon sound principles.' See, also, Higginson v. Inhabitants of Nahant, 11 Allen, 530, and Hubbard v. Taunton, 140 Mass. 467, 5 N.E. 157. In Olmstead v. Camp, 33 Conn. 551, the court, in discussing the line between public and private uses, says: 'From the nature of the case, there can be no precise line. The power requires a degree of elasticity, to be capable of meeting new conditions and improvements and the ever-increasing necessities of society. The sole dependence must be on the presumed wisdom of the sovereign authority, supervised, and, in cases of gross error or extreme wrong, controlled, by the dispassionate judgment of the court.' The grounds on which public parks are desired are various. They are to be enjoyed by the people who use them. They are expected to minister, not only to the grosser senses, but also to the love of the beautiful in nature, in the varied forms which the change in seasons brings. Their value is enhanced by such touches of art as help to produce pleasing and satisfactory effects on the emotional and spiritual side of

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our nature. Their influence should be uplifting, and, in the highest sense,...

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