Commonwealth v. Wilder

• Decision Date: 10 May 1879
• Citation: 127 Mass. 1
• Parties: Commonwealth v. Charles L. Wilder
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

127 Mass. 1

Commonwealth v. Charles L. Wilder

Supreme Court of Massachusetts

May 10, 1879

Argued October 1, 1878

Decided November 4, 1878

Worcester.

Exceptions overruled.

H. C Hartwell & E. P. Loring, for the defendant.

C. R Train, Attorney General, for the Commonwealth.

OPINION

Endicott J.

This is an indictment under the Gen. Sts. c. 161, § 82, for cutting down an elm tree standing on land of the inhabitants of Lancaster.

The principal question to be decided arises upon the following facts: In 1871, the defendant sold and conveyed to the inhabitants of Lancaster a parcel of land contiguous to a county road within the limits of that town. The parcel was bought by the inhabitants for the purpose of straightening grading and relocating the road and for obtaining the material necessary to be used in the grading; though this purpose did not appear in the deed, which conveyed the fee in the usual form of a warranty deed. No vote was passed by the town of Lancaster authorizing the purchase of this land, but the facts reported would warrant the jury in finding that the town had ratified the purchase. A road was actually constructed over the parcel by the town, though the way was not legally laid out either by the county commissioners or the town. The road thus established was fenced as a way, and the defendant, who, we presume, owned the fee in the old way, now occupies for purposes of cultivation that portion which was thus practically discontinued.

The defendant asked the court to rule that the inhabitants of Lancaster had no right to buy land for the purpose of maintaining shade or ornamental trees upon it, or for laying out, straightening or relocating a highway or town way, or for the purpose of obtaining material for the repair of highways, and had no title to the tree in question. The court refused so to rule, but did rule that, if the jury found that the tree was upon the land conveyed in fee to the inhabitants of Lancaster for the purpose for which it was bought and used, and the tree was growing upon it as a shade tree or for ornament, and the defendant wantonly and without cause cut it down, then the indictment could be maintained. To this ruling the defendant excepted, and the jury found that he was guilty.

The defendant now contends that towns have no authority to purchase land for such purposes, and that the deed was void, and conveyed to the inhabitants no title whatever; and also that the indictment cannot be maintained under the Gen. Sts. c. 161, § 82, but should have been found under the Gen. Sts. c. 46, § 7, or the St. of 1867, c. 242.

The first question presented in the defendant's argument is, whether a town may purchase land for the purpose of constructing a highway or a town way over it, or for the purpose of obtaining material for the construction and repair of its highways.

It is provided in the Gen. Sts. c. 18, § 9, that towns may hold real estate for the public use of their inhabitants, and may convey the same by vote of their inhabitants, or by deed of their committee or agents; they may also hold personal estate for the use of their inhabitants, and dispose of the same. They may hold both real and personal estate in trust for the support of schools and the promotion of education, and "may make contracts necessary and convenient for the exercise of their corporate powers; and may make such orders for the disposal and use of their corporate property as they may judge necessary or expedient for the interest of the inhabitants." This is the same provision contained in the Rev. Sts. c. 15, § 11, and is not to be found in any previous statute. The commissioners for the revision of the statutes of 1836, in their notes to this chapter, say that "this section is not intended to confer any new powers on towns; but only to state expressly certain powers which they have always been understood to possess, particularly in respect to conveyances of real estate;" this court having observed in Damon v. Granby, 2 Pick. 345, that it was questionable whether a town could contract by deed, as a vote of the town properly passed would convey land. See Adams v. Frothingham, 3 Mass. 352; Codman v. Winslow, 10 Mass. 146; Springfield v. Miller, 12 Mass. 415.

It may also be observed, that from the earliest time towns have been in the habit of holding and disposing of real estate. Under the colony ordinance of 1636, they were empowered to grant land within their limits for public uses, with power by vote to divide them among their inhabitants, subject to the paramount authority of the General Court, which reserved to itself and habitually exercised the power to grant lands so held by a town. 1 Mass. Col. Rec. 172. Lynn v. Nahant, 113 Mass. 433, 448. And in that case it was decided that land so held by Lynn passed to Nahant by its act of incorporation in 1853. It has also been decided in numerous cases that towns can properly take, hold and dispose of land under grants by the proprietors of common lands. Gloucester v. Gaffney, 8 Allen 11. Green v. Putnam, 8 Cush. 21. See also Emerson v. Wiley, 10 Pick. 310. And towns may purchase and occupy land for the purpose of erecting market-houses and town-houses for the use of their inhabitants, and they may do this under the general powers conferred upon them, for the statutes give them no special authority to purchase and hold land for that purpose. Stetson v. Kempton, 13 Mass. 272. Spaulding v. Lowell, 23 Pick. 71. French v. Quincy, 3 Allen 9. Hadsell v. Hancock, 3 Gray 526. See also Hardy v. Waltham, 3 Met. 163; Willard v. Newburyport, 12 Pick. 227. There was no express provision empowering towns to purchase lands for school-houses until the Gen. Sts. c. 38, § 37. But the St. of 1848, c. 237, authorized towns to take land for school-houses when the owner should refuse to sell the same, or should demand an unreasonable price therefor; clearly indicating that there was no question of the general power of a town to buy land for school-houses. Although towns are authorized to provide work-houses for the employment and support of paupers, no express authority is given to a town to purchase land for that purpose; Gen. Sts. c. 22; but it is distinctly implied that they have such power, for § 5 provides that several towns may unite in supporting an almshouse for their common use, and purchase land for that purpose. See St. 1788, c. 30.

It may therefore be assumed that towns in this Commonwealth may hold real estate by gift or purchase, whenever, in the exercise of their corporate powers, or in the performance of any duty imposed by law, it is necessary or expedient for the interest of their inhabitants to do so. And it was said by Chief Justice Parker, in Worcester v. Eaton, 13 Mass. 371, 378, "with respect to the capacity of the demandants," the town of Worcester, "to take by purchase and...