Attorney General v. Williams
| Decision Date | 23 June 1885 |
| Citation | 2 N.E. 80,140 Mass. 329 |
| Parties | ATTORNEY GENERAL, by Information, ex rel. THE HARBOR AND LAND COMMISSIONERS v. WILLIAMS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Asst. Atty. Gen. Harvey N. Shepard, for the Commonwealth.
F.A Brooks, for respondent.
The first question which we have considered is whether an information in the name of the attorney general can be maintained to enforce the stipulations in respect to the passage-way. In Attorney General v. Gardiner, 117 Mass. 492, it is declared that the commonwealth, in devising the scheme of improvement of the Back bay lands, acted in a two-fold capacity: as the proprietor of lands which it held and might sell, and as the sovereign power authorized to lay out highways for the benefit of the public; and that in the latter capacity it might enforce these provisions and restrictions against all persons bound by them, by an injunction in equity in the name of the attorney general. It is suggested that there is a distinction between that case and the present in this particular: that there the information was brought to enforce restrictions imposed against building on the front part of the lots bounding on the highway, for the benefit of the public; while here it is brought only in the interest of a few private owners of the adjacent property bounding on the passage-way. But the commonwealth properly reserved to itself the right to enter upon the premises by its agents, and, at the expense of the party in fault, to remove or alter, in conformity with the stipulations, any building or portion thereof which might be erected on the premises in a manner or to a use contrary to the stipulations. Also, by Pub.St. c. 19, § 5, in all cases where the commonwealth has such right, all grantees under the deeds by which such right is reserved, and their legal representatives or assigns, may, by proceeding in equity, compel the board of harbor and land commissioners to so enter and remove or alter such buildings, or portions thereof. It does not, in this case, appear affirmatively that the commonwealth has sold all of its land in the neighborhood of the premises in question, and that it has no direct pecuniary interest in enforcing the stipulation. But, assuming the fact to be so, it still has a duty to perform in this respect. Moreover, it may be said to have constituted itself a trustee for all the parties in interest by the form of the stipulation, with the implied assent of each grantee who takes a deed containing it. In either respect it has such an interest and duty as to entitle it, by its proper officer, to sue in this court on behalf of the rights and interests of those who claim its protection.
The principal ground of objection to the maintenance of the information is that the defendant has not infringed upon the stipulations referred to. Before considering this question in the light of the particular stipulation it may be well to review some of the principal authorities cited at the argument. The leading case upon this subject is Atkins v. Bordman, 2 Metc. 457, where it was held that the owner of land, over which his grantor had reserved a passage-way, might, under the peculiar circumstances of that case, lawfully cover such passage-way with a building, if he left a space so wide, high, and light that the way was substantially as convenient as before for the purposes for which it was reserved. There, from the language of the reservation, construed in the light of the existing facts and circumstances, the right reserved was held to be that of "a suitable and convenient foot-way to and from the grantor's dwelling-house, of suitable height and dimensions to carry in and out furniture, provisions, and necessaries for family use, and to use for that purpose wheelbarrows, hand-sleds, and such small vehicles as are commonly used for that purpose, in passing to and from the street to the dwelling in the rear, through a foot-passage in a closely-built and thickly-settled town." It was a use which was individual to the occupant of that house, and not for the public. It was limited to certain simple uses connected with getting things into and out of the house. It is obvious that the rights of the single person entitled under such circumstances to a passage-way are not necessarily identical with the rights involved in the present case.
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