Bancroft v. City of Cambridge

• Decision Date: 24 March 1879
• Citation: 126 Mass. 438
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: George Bancroft & others v. City of Cambridge

126 Mass. 438

George Bancroft & others v. City of Cambridge

Supreme Court of Massachusetts

March 24, 1879

Argued January 17, 1878

Middlesex. Petition to the county commissioners for a jury to assess damages for the taking by the respondent of several parcels of land in the Sparks Street District, so called, in Cambridge, under the St. of 1872, c. 299.

At the trial before a sheriff's jury, a verdict was rendered for the petitioners for less than the amounts respectively claimed by them; the Superior Court on their motion set aside the verdict; and the respondent appealed to this court. The facts appear in the opinion.

Verdict set aside.

J. W Hammond, for the respondent.

D. S Richardson, for the petitioners.

Colt, J. Endicott & Soule, JJ., absent.

OPINION

Colt, J.

The St. of 1872, c. 299, provides that the mayor and aldermen of the cities of Cambridge and Somerville may establish a grade in their respective cities not less than thirteen feet above mean low water, and may from time to time order the owners of lands to raise them to the grade so established, "with reference to a complete drainage thereof, so as to abate and prevent nuisances, and to preserve the public health." If the owner fails to comply with the order within six months after service thereof upon him, the board of mayor and aldermen may then raise the grade, as specified in the order, and all expense incurred thereby shall be a lien on the lands filled, to be collected in the manner provided for the collection of taxes on real estate. It is then provided, in § 6, that any one dissatisfied with the assessment of the expense of raising the grade of his land may, within six months after receiving notice of the same, apply for a jury to revise the same; and, by § 7, that he may, instead of applying for a jury, give notice within sixty days to the mayor and aldermen of his dissatisfaction, "and the city shall thereupon take said land, and shall within sixty days file in the registry of deeds" a description of the same, and a statement that it is taken under the provisions of the act. By § 8, if any person whose land is taken does not agree with the city on the amount of damage done to him by such taking, he may apply at any time "within six months from the filing of such description and statement," "for a jury to determine the damage so done him, making due allowance for the improvement by raising the grade of such land," and proceed as provided in the Gen. Sts. c. 43, in the laying out of highways.

Under these provisions, the mayor and aldermen of Cambridge ordered the petitioners to raise the grade of their lands by an order approved June 21, 1873. The order was not complied with within six months after receiving notice thereof. In October 1874, the grade was raised by the city, and an assessment of the expense was made in April 1876 upon the several petitioners, notice of which was given them May 24 of the same year. On the last day of the same month, the petitioners gave notice that

they were dissatisfied with this assessment, and requested the city to take their several lots according to the provisions of the act. But the city did not file in the registry of deeds the statement and description required by the act until September 23 of the same year.

At the trial before the jury to determine the damages which the petitioners had sustained by the taking of the land, the sheriff directed the jury that the question for them was the value of the property on September 23, 1876, the day when the description of the land and the statement that it was taken under the act were filed in the registry of deeds.

This direction was wrong. By the terms of the act, the city is absolutely required to take the land immediately upon notice of dissatisfaction on the part of the landowner with the assessment. The words of § 7 are, that "the city shall thereupon take the land and shall within sixty days thereafter file in the registry of deeds" the required statement. This clause makes the taking of the land one thing, and the filing of the certificate an independent and subsequent act, made necessary to secure record evidence of the taking of the particular land described, which the city may be compelled to perform by mandamus, as an act necessary to perfect the taking. Farnsworth v. Boston, 121 Mass. 173. Attorney General v. Boston, 123 Mass. 460, 476. The statute is peremptory in the requirement to take; no discretion or election is to be exercised by the city. No further entry is to be made, or other act is to be done. The landowner's title is then immediately devested by operation of law. The time of the taking was when, upon notice of dissatisfaction, the title by operation of law vested in the city; and the value at that time was the matter to be determined by the jury.

The case differs from that of a railroad, in which the taking of the land depends not upon any election of the owner, but upon the will of the corporation, and in which the location filed by the latter fixes the date as of which the damages shall be assessed. Hampden Paint Co. v. Springfield Athol & Northeastern Railroad, 124 Mass. 118. Old Colony Railroad v. Miller, 125 Mass. 1. It is almost superfluous to add, inasmuch as it is necessarily involved in the view above stated, that the value of the land is not to be estimated as of any date earlier than the surrender by...