Codman v. Crocker

• Decision Date: 11 September 1909
• Citation: Codman v. Crocker, 203 Mass. 146, 89 N.E. 177 (Mass. 1909)
• Parties: CODMAN et al. v. CROCKER et al.
• Court: Supreme Judicial Court of Massachusetts

203 Mass. 146

89 N.E. 177

CODMAN et al. v. CROCKER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 11, 1909

COUNSEL

John D. Bryant, Wm. D. Turner, Jas. D. Colt, and Ephraim F Aldrich, for plaintiffs.

Thos M. Babson, for defendants.

John F Cronan, for respondent McGovern.

Gaston, Snow & Saltonstall, for respondentBoston Elevated Ry. Co.

OPINION

KNOWLTON, C.J.

This is a bill brought by 10 taxpayers of the city of Boston against the city, the members of the Boston Transit Commission, and one McGovern, a contractor, to obtain an injunction against the construction of a tunnel from Cambridge under a part of Boston Common to the subway station near Park street.The suit was commenced under Rev. Laws, c. 25, § 100.The Boston Elevated Railway Company, as an interested party, was permitted to intervene as a defendant.

There is at least a grave question whether we have jurisdiction of the case under this statute, since the proceedings sought to be enjoined are in charge of a board of public officers over whom the city has no control, and they are conducted under an act of the Legislature which leaves the city no alternative in the performance of its duties.In Prince v. Crocker,166 Mass. 347, 44 N.E. 446, 32 L. R. A. 610, jurisdiction was taken under a statute like this, as the city, by vote, had voluntarily given the act effect.But for the reason stated in the opinion in Browne v. Turner,176 Mass. 9, 56 N.E. 969, we do not find it necessary to determine this question.If we have jurisdiction, we are of opinion that the plaintiffs have not shown a case that calls for relief.We therefore consider the substantive matters discussed by the parties.

The act principally relied on is St. 1906, p. 742, c. 520, which authorizes the Boston Transit Commission to construct this tunnel for use in the operation of a railway between Boston and Cambridge.The most important and difficult question in the case is whether the Legislature had constitutional authority to provide for the construction of such a tunnel under a part of Boston Common, in view of the uses to which the Common was dedicated by its owners in 1634.It is averred in the bill that it was then set apart 'for the common use of the inhabitants of Boston as a training field and cow pasture.'No further particulars of the dedication are stated in the bill, but it has been held repeatedly that the legal title to the property vested in the town of Boston as a municipality, for the public uses referred to in the language above quoted.The city of Boston has succeeded to the town, and it holds the land for these public uses.SeeHigginson v. Turner,171 Mass. 586, 51 N.E. 172;Steele v. Boston,128 Mass. 583-584-585;Lincoln v. Boston,148 Mass. 578-580, 120 N.E. 329, 3 L. R. A. 257, 12 Am. St. Rep. 601;Commonwealth v. Davis,162 Mass. 510, 39 N.E. 113, 26 L. R. A. 712, 44 Am. St. Rep. 389.As the holder of the title, it is in a kind of trust relation to the people for whose use the property was provided.

The first question is, what are the uses to which the property may be put?Only two are specifically mentioned, one for a training field and the other for a cow pasture.The inhabitants are to use it in common.The nature of each use is such as to require that it be accessible to all as a common to be enjoyed by the public.This dedication was very soon after the arrival of the first colonists in this part of New England.Town organizations were inchoate, and town boundaries were not well defined nor much regarded.In looking forward to the uses of the Common as a training field, the donors must have anticipated that, in its future use, persons would be present as spectators, or as participants in the movements, who were not inhabitants of Boston.The words chosen to designate the use indicate an intention that the place should be kept for occupation by the public as a common, in ways of which the two specified are only typical.As years have gone by, there is no longer any occasion for common occupation of this land as a cow pasture and in the sense in which the words 'training field' were then used, this is almost equally true of this other kind of use.The proper execution of the public trust requires that the property be still kept open as a common for occupation by all the people, in ways that are kindred to those in which a common would ordinarily be used under such a dedication in the early years of the colony.In general, it seems to have been the purpose and the endeavor of the public authorities, for almost three centuries, to preserve the Common for uses, as nearly as possible, under changing conditions, like those indicated by the original dedication.Not only have grass and trees been cultivated and spaces set apart for games and for the evolutions of soldiers, but walks have been laid out, monuments erected, fountains set up and other provisions made for the comfort and pleasure of the public in their use of the place.Some other uses a little more remote from those originally named, which it was thought would not materially interfere with the execution of the general purpose of the donors, have been permitted.Under the changed conditions in recent years, it was held by this court that the construction of a subway through the Common was not inconsistent with the purposes of the original dedication, and that it could be authorized by the Legislature, acting as the representative of the public interest.Prince v. Crocker,166 Mass. 362, 44 N.E. 446, 32 L. R. A. 610.This was virtually a decision that such a use was not a violation of the quasi trust under which the legal title is held.It does not disregard the doctrine, relied on by the plaintiffs, that, where property is dedicated by donors to a public use for a particular purpose, it cannot, at least without the exercise of the paramount right of eminent domain, be appropriated to a use of a different character, in disregard of the trust under which it is held and in violation of the rights of the donors and their legal representatives.Cary Library v. Bliss,151 Mass. 364, 375, 376, 25 N.E. 92, 7 L. R. A. 765;Howe v. Lowell,171 Mass. 575, 51 N.E. 536;Louisville & Nashville R. R. Co. v. City of Cincinnati,76 Ohio St. 481, 504, 506, 81 N.E. 983;City of St. Paul v. Chicago, Milwaukee & St. Paul R. R. Co.,63 Minn. 330-352, 63 N.W. 267, 65 N.W. 649, 68 N.W. 458, 34 L. R. A. 184;City of Jacksonville v. Jacksonville R. R. Co.,67 Ill. 540, 543, 544;Village of Riverside v. MacLain,210 Ill. 308, 71 N.E. 408, 66 L. R. A. 288, 102 Am. St. Rep. 164.In accordance with this doctrine, as stated and illustrated in these and other cases, the Common cannot be cut up into building lots and used for the erection of shops, and it may be doubtful whether it could be taken under an act of the Legislature and a vote of the city government of Boston, or of the citizens of Boston, and used by a railroad corporation for a freight yard.The rule that property taken for a public use may afterwards be taken for an entirely different public use that makes a continuance of the first use impossible applies especially to cases where the original taking is under a statute, and rests upon governmental authority.Boston v. Brookline,156 Mass. 172, 30 N.E. 611, and cases there cited;Old Colony R. R. v. Framingham Co.,153 Mass. 561-563, 27 N.E. 662, 13 L. R. A. 332;Prince v. Crocker,166 Mass. 347-362, 44 N.E. 446, 32 L. R. A. 610.As against the donors and the interests which they undertook to serve, it is plain that, except in the exercise of the right of eminent domain, the Common could not be appropriated to a public use entirely inconsistent with the general character of the use originally intended.Whether it could be taken in the exercise of this right it is unnecessary in this case to decide, as the statute does not purport to take property in the Common under the right of eminent domain.It contains no provision for compensation.It is possible that there has been such an acceptance of the dedication of the original donors by the town and city of Boston and by the Legislature under different statutes, and such a creation of a public trust in this particular as to deprive the public authorities of the right, that otherwise they would have, to devote the property to a public use of an entirely different kind.If we assume this as a possibility in favor of the plaintiffs, we are still of opinion that the proposed use is permissible.It is not proposed to interfere much with the surface of the Common.The only change authorized by the commissioners is a slight enlargement of the approaches to the station underground near Park street.So far as appears, the occupation above the surface, for all proper purposes, will be changed hardly perceptibly, if at all.The increase of facilities for approaching the Common will be a convenience to the public in the use and enjoyment of it.In Wellington, Petitioner, 16 Pick. 87, 26 Am. Dec. 631, which deals with the original dedication of the Common in Cambridge to use as a training field, it was held that the laying out of a public highway through a common similar to Boston Common was not inconsistent with the condition of the grant from the proprietors of the town.See, also, United States v. Illinois Central R. R., 2 Biss. 174-179, Fed. Cas. No. 15,437.Upon this point we think the decision in Prince v. Crocker, ubisupra, is also conclusive, notwithstanding the reference in the opinion to the vote of the inhabitants of Boston, accepting the act of the Legislature.If the use for a subway were inconsistent with the use for which the property is held under the original donation, and if the use could not be changed by the public authorities so as to be...