City of Boston v. Talbot

Decision Date18 May 1910
Citation91 N.E. 1014,206 Mass. 82
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Thomas M. Babson, for plaintiff.

Whipple Sears & Ogden (Sherman L. Whipple and Walter A. Powers, of counsel), for defendant.



This is an action brought under Rev. Laws, c. 181, to recover possession of real estate at the corner of Washington and Summer streets in Boston. This property was taken by the Boston Transit Commission on September 12, 1907, under St 1902, c. 534, for the purposes set forth in the act, which is entitled 'An act to provide for the construction of additional tunnels and subways in the city of Boston.' The principal question raised by the report is whether the taking was valid.

The form of the taking is in perfect compliance with the terms of the statute. It is contended by the defendant that the act is unconstitutional. In section 6 it authorizes the taking of lands in fee, and of 'easements, estates and rights in land, including the right to go under the surface thereof, or through or under buildings or parts of buildings thereon,' etc. The taking 'may be confined to a portion or section of such parcel, fixed by horizontal planes of division below or above or at the surface of the soil, and in such case no taking need be made of upper or lower portions or sections, except of such easements therein, if any, as the commission may deem necessary.' In section 7 authority is given to sell or remove the buildings from any and all lands taken, and to sell if a sale be practicable, and if not to lease any lands or rights or interests in land or other property so taken, whenever the same shall, in the opinion of the commission, cease to be needed for such purposes.

The construction of tunnels and stations underground, with the approaches thereto and all the necessary appointments thereof, called for uses of land in certain places, which involved many complications in reference to the effect upon land adjacent to that which would be occupied permanently by the tunnel and stations and approaches thereto, and upon buildings or horizontal planes of land above the portions permanently occupied. Risks of injury to buildings or foundations of buildings not within the limits of the tunnels or stations to be constructed would be involved in some places. Of course there would be a liability for damages, under section 8 of the statute, wherever property was taken or injured by the commission, under the authority of the act. If the construction of the tunnel or of a station of the tunnel, would necessarily have a directly injurious effect upon land outside of the limits of the tunnel, so as to subject the city to a substantial claim for damages on that account, it might be reasonable and proper for the commission to take the land in fee and pay for it, and then, when the work was ended, to dispose of that part which was no longer needed. The Legislature well might provide for a taking of land and a construction of the work with a reasonable regard to economy, and a taking in fee of adjacent land likely to be seriously injured in the progress of the work might be more economical than a taking only of that which would be needed permanently. The uncertainties as to the extent of injuries to the adjacent land from construction might cause serious embarrassment in the assessment of damages, and sometimes lead to large awards, founded on risks that might prove to be much less than was at first supposed.

The question whether the use for which land is taken under the right of eminent domain is a public use is a judicial question, and the determination of the Legislature upon it may be revised by the court. Talbot v. Hudson, 16 Gray, 417; Moore v. Sanford, 151 Mass. 285-288, 24 N.E. 323, 7 L. R. A. 151; Lowell v. Boston, 111 Mass. 454, 15 Am. Rep. 39; Opinion of the Justices, 204 Mass. ----, 91, N.E. 405. But if the use for which the taking is made is public, the question whether the taking of a particular piece of real estate is necessary or expedient is a legislative question, upon which the decision of the Legislature, as a tribunal of fact, is conclusive. Talbot v. Hudson, 16 Gray, 417-424; Dingley v. Boston, 100 Mass. 544-560; Lynch v. Forbes, 161 Mass. 302, 37 N.E. 437, 42 Am. St. Rep. 402; Burnett v. Boston, 173 Mass. 176, 53 N.E. 379; Moore v. Sanford, 151 Mass. 285-288, 24 N.E. 323; Shoemaker v. United States, 147 U.S. 282-298, 13 S.Ct. 361, 37 L.Ed. 170; United States v. Gettysburg Electric Ry., 160 U.S. 668-685, 16 S.Ct. 427, 40 L.Ed. 576; Challiss v. Atchison, Topeka & Santa Fé Railroad, 16 Kan. 117-127. This doctrine covers the principle that the Legislature may determine what kind of an estate it is necessary to take to accomplish the public purpose for which the taking is made, and may take a fee, even though the use of the fee may not be permanent. Sweet v. Buffalo Ry., 79 N.Y. 293; Waterworks v. Burkhart, 41 Ind. 364; Dingley v. Boston, ubi supra; Burnett v. Boston, ubi supra. The Legislature well might determine that a taking in fee might be necessary in certain cases, in reference to a reasonably economical management of the business in the public interest, even though the use of the fee would not be needed permanently, and might authorize a subsequent sale or leasing of any rights in the property that were no longer devoted to the public use. We see no reason for doubting the constitutionality of the act.

The right of the Legislature to determine what land, or rights or easements in land, it was necessary or expedient to take for use in the construction or maintenance of a tunnel and its appointments, it could delegate to a tribunal representing the public interest in that particular. The act of the Boston Transit Commission, in the form of a taking in writing, duly recorded, in conformity with the statute, is to be treated as if it were a statute. Its exercise of delegated legislative authority and its final judgment in determining what property it was expedient to take to accomplish the strictly public purpose for which the taking was made are not subject to revision. Of course, if the instrument of taking, considered in all its parts, and applied to the property described in it, showed that the property was not taken for the purposes set forth in ...

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