Farnsworth v. Boston

• Decision Date: 17 October 1876
• Citation: 121 Mass. 173
• Parties: Walter Farnsworth v. City of Boston
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 173

Walter Farnsworth v. City of Boston

Supreme Court of Massachusetts

October 17, 1876

Suffolk. Petition for a writ of mandamus, filed November 1 1875, to compel the city council and the mayor of Boston to take certain lands in Boston, and to file a description thereof in the registry of deeds, and to compel the mayor to sign said description, and for further relief. Hearing before Devens, J., who reported the case for the consideration of the full court. The facts appear in the opinion.

Alternative mandamus to issue.

J. P Treadwell, for the petitioner.

W. A. Field, for other parties having similar interests, was allowed to file a brief.

J. P. Healy & H. W. Putnam, for the respondent.

Devens, J. Ames & Morton, JJ., absent.

OPINION

Devens, J.

The St. of 1873, c. 340, was passed "in order to secure a complete drainage" of a tract which has been known as the Northampton Street District, so as to abate nuisances "and to preserve the public health of the city," and provided that the city council might order the owners of lands therein to raise and fill their lands, with good materials, to such permanent grade as the board of aldermen might deem necessary for such purposes. If, after proper notice, the owner failed to comply, the city council was to raise the grade, and the necessary expenses thus incurred constituted a lien on the lands thus filled, and might be collected "as is provided by law for the collection of taxes upon real estate and in case of land sold for taxes." Any person, entitled to any estate in the land, dissatisfied with the assessment of the expense of raising, might apply for a jury to assess the same; or any person dissatisfied might give notice to the city council within six months after such assessment, and it was then the duty of the city to take the land, the title thereof vesting absolutely in the city. St. 1873, c. 340, §§ 1-4.

When the order for filling was made in the present case, the lands of the petitioner, subject to certain mortgages, were owned by W. E. Woodward, and, he having neglected to comply with such order, the city council proceeded to fill them, and afterwards assessed the expense thereof upon Woodward. The petitioner, having in the mean time become the owner, being dissatisfied with such assessment, gave notice and offered to surrender his estate. This the city council has neglected to take, but has passed an order vacating the assessment thereon.

It is objected that no mandamus should issue, because the petitioner is unable to offer, and does not offer, an unincumbered title in fee simple to the lands. In construing the St. of 1869, c. 391, a statute intended for a similar purpose, and almost literally the same with the one now before us, so far as the provisions in regard to assessment and surrender are concerned, it was held that the city was compelled to take the title of a tenant in common. Leavitt v. Cambridge, 120 Mass. 157. But it is suggested that where only an equity of redemption is offered, which may instantly be defeated by a foreclosure of the mortgages, the court will not compel the city to accept the surrender; and that a distinction may be made between the case above cited and the present in this, that there the petitioner offered a title in fee simple to a certain share in the land, an undivided piece of land, and not merely an estate in the land less than a fee. But the 3d and 4th sections of the St. of 1873, c. 340, are to be construed together; and when in the 3d section it is provided that "any person entitled to any estate in any land" may apply for a jury, and in the 4th section, that instead thereof "any person dissatisfied with the assessment" upon his said land may give notice of surrender, it must be held that the words "any person," in the latter section, refer to the person more particularly described in the former as "any person entitled to any estate in any land." Leavitt v. Cambridge, ubi supra. The ownership of an equity of redemption is the ownership of an estate in the land, within the meaning of the statute. Upon its surrender, this estate vests in the...