Burnes v. Metropolitan Dist. Com'n
| Decision Date | 03 May 1950 |
| Parties | BURNES et al. v. METROPOLITAN DISTRICT COMMISSION et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued March 10 1950.
R. Wait, Boston (W N. Kernan, Boston, with him), for plaintiffs.
W. S. Kinney Ass't Atty. Gen'l, for Commissioners. J. W. Kelleher, Ass't Corp. Counsel, Boston, for City of Boston.
A. Julian, Boston, for Wes Julian Construction Co.
Before QUA, C. J. and LUMMUS, RONAN, WILKINS and COUNIHAN, JJ.
This bill in equity by inhabitants and voters of the city of Boston, twelve in number, [1] against the metropolitan district commission, The Wes Julian Construction Corporation, and the city of Boston, prays that 'the court declare that it is unlawful' that certain park land be used for a public way until the consent of the inhabitants of the city has been obtained and, in the meantime, that the defendant commission and the defendant construction corporation be enjoined from entering upon the park land for the purpose of constructing a public way thereon. The defendants filed demurrers setting up, among other things, want of equity. Two demurrers give as a ground lack of standing entitling the plaintiffs to maintain the bill. The point was not taken that the Commonwealth was not made a party. See Kilroy v. O'Connor, 324 Mass. 238, 85 N.E.2d 441. Interlocutory decrees were entered sustaining the demurrers. The suit is here on report of the judge for the determination of the correctness of such rulings. G.L.(Ter.Ed.) c. 214, § 30.
The allegations of the bill are as follows: Within the city of Boston in the area bounded on the north by the Charles River, on the east by Embankment Road, on the south by Back Street, and on the west by Muddy River, is situated a park. Title to the northern portion of the park is in the Commonwealth, and title to the southern portion, which lies between Back Street and the northerly edge of c concrete walk running east and west through the middle of the park, is in the city. The southerly portion is referred to in the bill as 'Boston Park Land.' All the park has 'long since' been dedicated to the use of the public, and 'Boston Park Land' has been appropriated to such use without interruption for a period of more than twenty years. Pursuant to directions received by the defendant commission under St. 1949, c. 262, entitled 'An Act providing for the construction of a limited access way along the southerly side of the Charles River from Nashau Street near the Leverett Street circle to Soldiers Field Road in Boston including the construction of traffic interchanges at Charlesgate East and West and Charles and Cambridge streets and an underpass at Leverett and Nashua streets, Boston,' the defendant commission proposes to locate a public way within the park and in part upon 'Boston Park Land,' and has caused the defendant construction corporation to commence work thereon within 'Boston Park Land' notwithstanding that the consent of the city has not been obtained. No notice has been given by the defendant commission as 'required' under G.L. (Ter.Ed.) c. 79, § 5. The difections to the defendant commission contained in St. 1949, c. 262, do not require the public way to be located within 'Boston Park Land,' the only specification of location south or west of Longfellow Bridge being that the way shall be 'along the Charles River' between termini neither of which is within 'Boston Park Land.' Under G.L. (Ter.Ed.) c. 79, § 5, the plaintiffs, together with such other voters of the city as may desire to join them, 'are entitled'--so reads the bill--to request in writing that any consent of the city be expressed by a vote of the inhabitants, but they are unable to file such request by reason of the 'failure' of the defendant commission to give the notice 'required' by § 5. 'It is unlawful for the respondent commissioners or any other authority to use said Boston Park Land or any part of said park for a public way as they propose to do unless and until such consent shall have been obtained all as provided in said § 5.' The plaintiffs are without adequate remedy at law, and, unless the defendant commission and the defendant construction corporation are enjoined, the plaintiffs and all other members of the public entitled to the use of 'Boston Park Land' will suffer irreparable injury.
The plaintiffs contend that the bill can be maintained for declaratory relief under G.L. (Ter.Ed.) c. 231A, §§ 1, 2, inserted by St. 1945, c. 582, § 1. Upon demurrer, a bill stating a case within the declaratory judgment statute is good, and no question of discretion whether to grant relief is open. School Committee of Cambridge v. Assistant Superintendent of Schools of Cambridge, 320 Mass. 516, 520, 70 N.E.2d 298; Hogan v. Hogan, 320 Mass. 658, 662-663, 70 N.E.2d 821; Burn v. McAllister, 321 Mass. 660, 75 N.E.2d 114; Carlton Hotel, Inc., v. Abrams, 322 Mass. 201, 203, 76 N.E.2d 666; Booker v. Woburn, 325 Mass. 334, 336, 90 N.E.2d 558.
The general allegations as to the legal effect of § 5 are not admitted by the demurrers. Stone, Timlow & Co., Inc., v. Stryker, 230 Mass. 67, 72, 119 N.E. 655; Dealtry v. Selectmen of Watertown, 279 Mass. 22, 26, 180 N.E. 621; Stockus v. Boston Housing Authority, 304 Mass. 507, 510-511, 24 N.E.2d 333. So far as material, § 5 reads:
From the allegations of the bill, as well as from the provisions of St. 1949, c. 262, it is manifest that it is for the Commonwealth itself the highway is to be constructed upon the park land. Takings by eminent domain are authorized in the name of the Commonwealth (§ 6). Damages therefor are recoverable from the Commonwealth (§ 12). A decision for the plaintiffs involves acceptance of the proposition that by G.L. (Ter.Ed.) c. 79, § 5, the Commonwealth has subjected its power of eminent domain to the consent of the city, to be expressed, in certain circumstances, by vote of the inhabitants. This proposition cannot be maintained. The taking of property by eminent domain is an attribute inherent in sovereign power. It cannot be contracted or bartered away. West River Bridge Co. v. Dix., 6 How. 507, 531-534, 12 L.Ed. 535; Pennsylvania Hospital v. Philadelphia, 245 U.S. 20, 22-24, 38 S.Ct. 35, 62 L.Ed. 124; ...
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