Attorney Gen. v. Abbott

• Decision Date: 03 September 1891
• Citation: 28 N.E. 346,154 Mass. 323
• Parties: ATTORNEY GENERAL v. ABBOTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 323

28 N.E. 346

ATTORNEY GENERAL

v.ABBOTT.

Supreme Judicial Court of Massachusetts, Bristol.

Sept. 3, 1891.

Case reserved from supreme judicial court, Bristol county; W.A. FIELD, Chief Justice.

Information by the attorney general against Abbott, setting forth that defendant claims certain parks which have been dedicated to the public, and that he has brought suit to recover the same, and is doing other acts contrary to equity and good conscience. Plaintiff asks that the court make due inquiry, and enjoin Abbott from encroaching or interfering in any way with the public use of the said parks. Decree for plaintiff.

T.M. Stetson and H.M. Knowlton, for plaintiff.

J.D. Ball, G.C. Abbott, and L.W. Howes, for defendant.

ALLEN, J.

A perusal of the voluminous evidence, aided by the full briefs of counsel, shows to our satisfaction that there was an intention on the part of the owners of the parcels of land called “Ocean Park,” “Hartford Park,” and “Waban Park” to dedicate them to the use of the public as parks, and that the same were used by the public enough to show an acceptance thereof prior to the year 1880. It will not be useful to state in much detail the evidence which leads to these results, or to discuss the particulars in which witnesses disagree or contradict each other. The general features, however, are as follows: In 1866, six persons united in a plan for making a place of summer resort at Oak Bluffs, in Edgartown. One of them already owned a large lot of vacant land which was deemed suitable for the purpose. Each of the five others purchased an undivided sixth part thereof. A professional landscape gardener-Mr. Copeland-was employed to lay out the grounds in such a manner as would be likely to attract people who would come there only for the summer, and to induce them to buy lots, build cottages, and establish a village. In 1867, a deed of the premises was made to two of their number as trustees, for the benefit of the six owners; and in 1868 an act of incorporation was obtained, and the land was conveyed to the corporation. The sole purpose of the corporation was the holding, improving, and disposing of the land and a wharf then held by the two trustees, with power also to purchase, hold, improve, and dispose of other adjacent lands. St.1868, c. 60. At the outset the original six owners constituted all of the stockholders of the corporation, and they all became directors. According to the bylaws, four directors constituted a quorum, with full power to do all that the full board of directors could do; and the directors were to prepare the real estate of the company for sale, make sales thereof, expend all moneys, and dispose of all other property of the company in such manner as they should judge best calculated to promote the object of the company and advance the interest of the stockholders, and make such improvements as they might deem advisable. Plans for laying out the proposed village were prepared by Mr. Copeland, showing open spaces not divided into lots. These plans underwent certain changes in matters of detail. One plan, recorded August 20, 1867, showed such an open space, to which on later plans the name of “Ocean Park” was given, though with a change of limits. After this, and after the corporation was formed, other land was bought, and a new plan was made, which was recorded May 7, 1870, showing the three parks now in controversy, described by their names. After this there was no change in the boundaries of Hurtford and Waban parks, but there was a change in Ocean park. A new plan was made, dated June 1, 1871, showing Ocean park with somewhat modified boundaries, and the other parks as in the earlier plan; and this was recorded July 5, 1871. Still another plan was made in 1871, showing the three parks without change of limits, and this was recorded in 1873. A few lots were bargained for in 1867, but no sales were actually completed till 1868, after which lots were rapidly sold, to the number of 500 within 3 years. Copies of tho several plans were struck off and widely circulated. The printed copies of the plan which was recorded August 20, 1867, had the name of “Ocean Park” added. Some of these were framed, and hung up in hotels, steam-boats, railroad stations, and other public places. Very many were distributed through the mails. During all the period of settling the plans, great pains were taken to give wide publicity to them, not only in the above methods, but by circulars and advertisements calling attention to them, and by printing a reduced copy of one or more of them upon letter sheets. Copies of the plans were also kept in the directors' room for free distribution.

The testimony makes it very plain that the establishment of open spaces or parks was deemed an important feature of the scheme for selling lots. At the outset it was a matter of discussionamong the parties interested. Lots fronting upon the parks, or having an unobstructed view of them, were deemed more attractive. Assurances were freely given by those having charge of the sale of the lots that these spaces or parks should always be kept open. Four of the original owners testify in distinct terms that it was the intention of those interested in the enterprise to make them open parks, free to the public forever. This is so extremely natural and probable, and any other course would be so unlikely, that evidence of a contrary intention on the part of any one of them would be received with some distrust. If the corporation had announced at the time of making the sales that it reserved the right to cut up the open spaces into building lots to sell them after the village should be established, it would no doubt have diminished the sales. If the corporation had an intention to reserve this right, the course pursued of inviting purchasers was inconsistent with common honesty. The defendant concedes that some of the original owners and stockholders in the corporation gave such assurances to purchasers, and in various ways gave wide publicity to the plan of having these places kept open as public parks; but he contended that two of them did not assent to this course. One of these, Mr. Darrow, died in 1871; the other was a...