City of Salem v. Attorney General

• Decision Date: 28 June 1962
• Citation: City of Salem v. Attorney General, 183 N.E.2d 859, 344 Mass. 626 (Mass. 1962)
• Parties: CITY OF SALEM et al. v. ATTORNEY GENERAL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 859

183 N.E.2d 859

344 Mass. 626

CITY OF SALEM et al. v. ATTORNEY GENERAL et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued May 7, 1962.

Decided June 28, 1962.

Alfred A. Dobrosielski, City Sol., stated the case.

John A. McNiff, Peabody, for intervener.

James E. Farley, Salem, for Board of Park Com'rs of Salem.

Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER and SPIEGEL, JJ.

WILLIAMS, Justice.

This is a petition by the city of Salem for a determination of its right to use for the erection of a public school building a portion of a tract of land known as Ledge Hill which was devised to the city by William Mack. The respondents are the Attorney General and the board of park commissioners of the city. The school committee of the city has been allowed to intervene. The parties, other than the Attorney General, have agreed on the pertinent facts and he has submitted his rights and obligations to the determination of the court. The statement of agreed facts was approved by the judge.

The land involved is an area of twenty-one acres in the northerly section of the city. It was formerly owned by Esther C. Mack, who died on December 24, 1884. She devised her estate known as Ledge Hill to her brother William 'trusting that he will bequeath said estate to the city of Salem, Massachuetts, for public grounds, for the benefit of the inhabitants of said city.' William Mack, who was a practicing physician in Salem and unmarried, died on June 9, 1895. He left a will containing various charitable bequests and devised Ledge Hill with the buildings thereon '[i]n accordance with the wishes of my late sister Esther as expressed in her will * * * to the City of Salem to be used forever as Public Grounds for the benefit and enjoyment of the citizens of said City, under such regulations as may seem best for the proper care of the same * * *' and requested that one 'Alfred Stone * * * may be consulted as to the laying out and management of said Grounds so long as it may be agreeable to him.' Stone was a legatee under Esther's will and with her brother William was also coexecutor of her estate. He later became a co-executor of William's will.

On October 16, 1896, the city's board of aldermen resolved 'that the bequest of the late William Mack devising Ledge Hill commonly known as the 'Mack Farm' to the city of Salem for use as a park be and the same hereby is accepted and the Park Commissioners are hereby requested to take control of the same in the name of the city.' This resolve was adopted a week later by the common council of the city. The park commissioners thereupon assumed control of Ledge Hill and, since 1896, have continued with its custody and control. In 1904, the executors of the estate of William filed a petition with the Probate Court, in which, after reciting that 'Mack gave his farm in said Salem * * * for the purpose of establishing a park,' they sought instructions as to the disposal of certain rentals which they had collected from the tenant of an old building on the farm. The court ordered that the money, amounting to $877.75, be paid to the city of Salem, and the common council directed that the income therefrom be paid annually to the board of park commissioners to be used 'for planting trees and shrubs in Ledge Hill Park and otherwise adding to the permanent beauty of said park.' The park contains an old farm house, used as a home by the park superintendent, and old renovated barn used as a garage and equipment shed, ball field, playground, greenhouse, flower beds, driveway, paths, many trees, and other open areas left nearly in natural state. It is used by neighborhood associations for lawn parties and field days.

By St.1908, c. 130, which was approved by the city on April 24, 1908, the Legislature provided that: 'The board of park commissioners of the city of Salem shall have the same authority over the public pleasure grounds in said city known as Salem Willows, Ledge Hill Park, and Liberty Hill Park, which by chapter twenty-eight of the Revised Laws is given to boards of park commissioners over public parks located in accordance with the provisions of said chapter; but said board may permit any buildings or other structures standing upon said pleasure grounds at the time of the taking effect of this act to remain thereon, to be used for shelter, refreshments, amusements, wharves, boat landings, boat houses and other purposes, for the accommodation of the public; and may, from time to time, permit other buildings and structures to be erected on said grounds to be used for said purposes.'

By St.1957, c. 148, it was provided that: 'The city of Salem is hereby authorized to use for the erection of a public school building and for other school purposes, and for all purposes incidental thereto, * * * a portion of Ledge Hill Park now owned and held by said city for park, playground or recreation purposes' containing about three acres and shown on a plan filed in the office of the city engineer. This act was approved by the city council on March 14, 1957, and by the mayor on the following day.

It is agreed that there is an actual controversy within the meaning of G.L. c. 231A, § 1, existing among the city of Salem, the park commissioners, and the school committee as to whether this three acre parcel may lawfully be used as a public school site. There was a hearing on June 1, 1961, after which the judge took a view of the premises. It was pointed out to him, apparently by agreement, that 'the Park is a beautiful, well-landscaped area that...