Appleton v. City of Newton

• Decision Date: 02 March 1901
• Citation: Appleton v. City of Newton, 178 Mass. 276, 59 N.E. 648 (Mass. 1901)
• Parties: APPLETON v. CITY OF NEWTON.
• Court: Supreme Judicial Court of Massachusetts Supreme Court

178 Mass. 276

59 N.E. 648

APPLETON v. CITY OF NEWTON.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1901

COUNSEL

Robt. S. Gorham and Roland Gray, for complainant.

Winfield S. Slocum, for the city of Newton.

OPINION

KNOWLTON J.

The first question raised at the argument was whether the form of the taking of the plaintiff's land was sufficient to answer the requirements of the statute. This question must be answered in the affirmative. The instrument, which was duly recorded in the registry of deeds, signed by the mayor and a majority of the board of aldermen and a majority of the common council of Newton, set forth that the city had taken the land, which was described by metes and bounds and by a reference to a plan, and by giving the name of the owner, and stated that the taking was 'in part execution of, and for the purposes set forth in, the following acts of the legislature of said commonwealth, to wit, chapter 344 of the Acts of the Year 1872, entitled 'An act to supply the town of Newton with water,' chapter 54 of the Acts of the Year 1876, entitled 'An act in addition to an act to supply the town of Newton with water,' chapter 302 of the Acts of the Year 1889, entitled 'An act to provide an additional water supply for the city of Newton,' and all other acts relating to supplying the city and town of Newton with water, and for the purposes of the water supply for the said city of Newton, and an additional water supply therefor.' There is no doubt that the taking was within the authority which St. 1872, c. 344, as amended by St. 1889 c. 302, purports to give. These two statutes being referred to as a foundation for the proceedings, the validity of the taking is not affected by the reference to other acts relating to the water supply of Newton which have no direct application to the taking of this land. Apart from the reference to the statutes for a statement of the purposes of the taking, an express statement in the words 'for the purposes of the water supply for said city of Newton, and an additional water supply therefor,' is sufficiently definite. The filing of this paper in the registry of deeds in pursuance of a former order of taking, which was regularly passed by both branches of the city council and approved by the mayor, was a good taking to pass the title under the statutes. St. 1872, c. 344; St 1889, c. 302; Ham v. City of Salem, 100 Mass. 350; Print Works v. Inhabitants of Canton, 167 Mass. 341-344, 45 N.E. 746, and cases cited; Burnett v. City of Boston, 173 Mass. 173, 53 N.E. 379; Inhabitants of Town of Rockport v. Webster, 174 Mass. 385, 54 N.E. 852.

The most important question in the case is whether St. 1872, c 344, is constitutional, inasmuch as it contains no provision for a formal notice of the taking to landholders, either before or after the appropriation of the land. The determination of the question whether there is a necessity for the taking of the property in the exercise of the right of eminent domain lies with the legislature, as the representative of the sovereign power. On this question the parties to be affected by the taking are not entitled to notice or a hearing. Holly v. City Council of Somerville, 127 Mass. 408; In re Old Colony R. Co., 163 Mass. 356, 40 N.E. 198, and cases cited. All that is necessary is an adequate provision for their compensation, and this, of course, implies an opportunity to be heard on the amount to be paid. Const. Mass., Declaration of Rights, art. 10; Const. U.S. Amend. 14; Brickett v. Aqueduct Co., 142 Mass. 394, 396, 397, 8 N.E. 119; Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226-241, 17 S.Ct. 581, 41 L.Ed. 879. An opportunity to be heard necessarily involves notice or the means of knowledge of the taking before the expiration of the time within which they may have a remedy for the deprivation of their property. It does not follow that personal service of a paper, or formal notice of any kind, is necessary. A taking of land for a public use is strictly a proceeding in rem, the res being within the jurisdiction of the state. In all such cases it is enough if there is such a notice as makes it reasonably certain that all persons interested who easily can be reached will have information of the proceedings, and that there is such a probability as reasonably can be provided for that those at a distance will also be informed. Huling v. Improvement Co., 130 U.S. 559, 564, 9 S.Ct. 603, 32 L.Ed. 1045; Hagar v. District No. 108, 111 U.S. 701-711, 4 S.Ct. 663, 28 L.Ed. 569; McMillen v. Anderson, 95 U.S. 37, 24 L.Ed. 335; Davidson v. City of New Orleans, 96 U.S. 97, 24 L.Ed. 616; In re Union El. R. Co., 112 N.Y. 61-65, 19 N.E. 664; Railroad Co. v. Baltzell, 75 Md. 94, 23 A. 74; State v. Messenger, 27 Minn. 119, 6 N.W. 457. It is for the legislature, within proper limitations, to say what means of knowledge will be enough to put upon a landowner the duty, within a prescribed time, to take measures to obtain his compensation if he wishes to save his rights. The legislature in this case has given the petitioner three years after the taking of his land within which to commence a suit, and has not required that any formal notice of the taking should be given him, other than constructive notice by filing a paper in the registry of deeds. The precise question before us is whether it is so plain that the legislature has failed to make reasonable provisions for giving landowners an opportunity to obtain compensation for land taken that for this reason we should declare the statute unconstitutional. In fixing a time within which petitions for the assessment of damages may be filed, the legislature assumed, without making a special provision therefor, that landowners would have notice of the taking. There are good grounds for the assumption. In the first place, the statute authorizing the taking is a public law, of which every one is presumed to have knowledge. The legislature provided for the publication and distribution of printed copies of statutes soon after their enactment. This statute is one which, from its nature, affects people and property only in a very small territory. The subject to which it relates is one of general public interest in the neighborhood affected by it, and it would hardly be possible that such legislation would be proposed and enacted without general knowledge among the people in that neighborhood that such a proposition was being considered. The method of taking the land is also by public proceedings requiring concurrent action of both branches of the city government, whose meetings are ordinarily public, and whose doings are a matter of public record as...