Broderick v. Dep't of Mental Diseases of Commonwealth of Massachusetts
| Decision Date | 06 March 1928 |
| Citation | 160 N.E. 404,263 Mass. 124 |
| Parties | BRODERICK v. DEPARTMENT OF MENTAL DISEASES OF COMMONWEALTH OF MASSACHUSETTS. BRODERICK et al. v. SAME (three cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Supreme Judicial Court, Middlesex County.
Separate petitions for certiorari by Patrick S. Broderick, by Domnick Broderick and others, by Patrick S. Broderick and others, and by Domnick Borderick and others against the Department of Mental Diseases of the Commonwealth of Massachusetts, to quash proceedings of the respondent in taking land. Petitions were denied, and the petitioners except. Exceptions overruled.
D. E. Hall and P. N. Jones, both of Boston, for petitioners.
A. K. Reading, Atty. Gen., and R. Clapp, Asst. Atty. Gen., for respondent.
These are four petitions for certiorari to quash the proceedings of the department of mental diseases of the commonwealth of Massachusetts in taking the parcels of land referred to in the petitions. The single justice denied the petitions, and the petitioners excepted.
The petitioners Domnick, Mary E. and Delia A. Broderick for many years owned a parcel of land in Waltham. On March 9, 1927, they conveyed to Patrick S. Broderick the portion of this land shown as parcel A on the plan annexed to the petitions. Parcel A comprised a strip of land 70 feet in width, with shade and fruit trees thereon. Parcel B, which adjoins parcel A, is the property of Domnick, Mary E. and Delia A. Broderick. Parcel C adjoins parcel B and was conveyed on March 9, 1927, to Patrick S. Broderick. Parcel D, upon which the dwelling house is situated, is the property of Domnick, Mary E. and Delia A. Broderick.
In January, 1927, the commonwealth had acquired land in Waltham, Lexington and Belmont, and the land owned by Domnick, Mary E. and Delia A. Broderick was bounded on its northerly and easterly sides by land so purchased by the commonwealth. The department of mental diseases contemplated the erection of a hospital on the land so acquired. A bill, House Bill No. 730, entitled ‘An act authorizing the department of mental diseases to take land in the city of Waltham for the proposed metropolitan state hospital,’ was filed in January, 1927. This bill was amended, and approved by the Governor on April 6, 1927. St. 1927, c. 211. It gave the department of mental diseases the power to take by eminent domain or acquire by purchase land in fee in Waltham, Belmont and Lexington for the proposed metropolitan state hospital, ‘provided, that no land shall be taken or purchased except such as adjoins land owned by the commonwealth on the effective date of this act or land taken or purchased under authority hereof.’
An appropriation of $1,500,000 was made for necessary expenses of the hospital, including the purchase of land. On October 6, 1927, the department in the name of the commonwealth took parcel A. By a similar order dated October 18, 1927, ‘except that the same included ‘the trees and structures affixed thereto’' with an appropriate description, parcel B was taken. On October 25, 1927, parcel C was taken. On October 29, 1927, parcel D was taken.
Although a writ of certiorari does not issue as of right, and is a discretionary writ (Byfield v. Newton, 247 Mass. 46, 58, 141 N. E. 658), we consider the questions raised by the petitioners' exceptions. It is contended that the taking of parcel A is void because the order of taking did not state whether the trees upon the land were included in the taking. By G. L. c. 79, § 1, it is provided:
‘In case there are trees upon the land taken, or structures affixed thereto, the order of taking shall state whether the same are to be included in the taking, and, if they are not so included, shall allow the owner a reasonable time after the date of the order or after entry or possession to remove the same, to be specified in the order.’
The taking of parcel A was valid, although there were trees on the parcel and the order of taking did not state that the trees were included. It has been held in numerous cases where land was taken for highway purposes that the taking was valid, although this...
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