Breckwood Real Estate Co. v. City of Springfield
| Decision Date | 05 January 1927 |
| Citation | 154 N.E. 552,258 Mass. 111 |
| Parties | BRECKWOOD REAL ESTATE CO. v. CITY OF SPRINGFIELD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Hampden County; W. A. Burns, Judge.
Petition by the Breckwood Real Estate Company for assessment by jury of damages for the alleged taking of certain parcels of land by the City of Springfield. On report. Petition dismissed.
F. G. Wooden and H. P. Small, both of Springfield, for petitioner.
C. H. Beckwith, City Sol., of Springfield, for defendant.
This is a petition for assessment by a jury of damages for the alleged taking of certain parcels of land for schoolhouse purposes. The petitioner alleged that the city took its lands by virtue of two orders: One passed July 21, 1924 (copy of which was recorded in the registry of deeds on July 29, 1924), and the other passed December 22, 1924 (copy of which was recorded in the registry of deeds on December 30, 1924). The case is here upon a report by a judge of the superior court.
The respondent denies that by the orders before referred to the petitioner's land was taken by eminent domain; and denies that said taking was previously authorized by the city council, or that any appropriation was previously made by a two-thirds vote of that body.
G. L. c. 40, § 14, St. 1921, c. 486, § 7, and St. 1923, c. 266, provides that the aldermen of a city may purchase or take by eminent domain under G. L. c. 79--
‘for any municipal purpose any land, easement or right therein within the town not already appropriated to public use, * * * but no land, easement or right therein shall be taken or purchased under this section unless the taking or purchase thereof has previously been authorized by the city council * * * nor until an appropriation of money, to be raised by loan or otherwise, has been made for the purpose by a two-thirds vote of the city council. * * *’
St. 1925, c. 272, was passed after the events here involved.
[1] If it be assumed that the order adopted by the city council on July 21, 1924, was passed by a two-thirds vote, it is plain that it was not an appropriation of money for the purpose of defraying the expense of the taking of the petitioner's lands. By its terms it was for ‘acquiring land for any purpose for which a city or town is or may hereafter be authorized to acquire land, not otherwise herein specified. * * *’ The order does not describe any land of the petitioner or of any other owner. Although it appropriate $513,000 for the taking of the land for the purposes described in the order, as it makes no reference to any land of the petitioner it is not sufficient to authorize the taking here assailed.
[2] The subsequent order passed on the same day, but so far as appears not by a two-thirds vote, specifically appropriating out of said sum of $513,000 the sum of $18,000 ‘toward defraying the cost of acquiring land in the Boston road district for schoolhouse purposes, as described in an order passed by the city council * * * ’ is insufficient. The order of taking passed on July 21, 1924, was invalid because of the insufficiency of the order appropriating money.
[3] The order of taking by the board of aldermen on December 22, 1924, was passed without any previous authorization by the city council or appropriation of money made for the purpose by a two-thirds vote of the city council, as required by G. L. c. 40, § 14, St. 1921, c. 486, § 7, and St. 1923, c. 266. It is therefore void. Where land is sought to be taken by eminent domain, the statutory authority granted by the Legislature must be strictly pursued and all the conditions performed. Lajoie v. Lowell, 214 Mass. 8, 100 N. E. 1070;Spare v. Springfield, 231 Mass. 267, 120 N. E. 854. See Watertown v. Dana, 255 Mass. 67, 150 N. E. 860, 44 A. L. R. 1374.
[4] Notwithstanding the failure of the respondent to...
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