Foster v. Board of Park Commissioners of City of Boston

• Decision Date: 06 May 1881
• Citation: 131 Mass. 225
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Dwight Foster & others v. Board of Park Commissioners of the City of Boston

131 Mass. 225

Dwight Foster & others v. Board of Park Commissioners of the City of Boston

Supreme Court of Massachusetts

May 6, 1881

Suffolk.

Writ of certiorari issued.

D. Foster & H. D. Hyde, for the petitioners.

H. W Putnam, for parties having similar interests, was permitted to file a brief in support of the petition.

E. P Nettleton, for the respondent.

Gray C. J. Colt, Endicott & Devens, JJ., absent.

OPINION

Gray, C. J.

This is a petition for a writ of certiorari to quash an order of the board of park commissioners of the city of Boston under the St. of 1875, c. 185, assessing lands of the petitioners and others for special benefits received fro the locating and laying out of a park.

By §§ 1, 2, of that statute, the mayor of the city of Boston was authorized, with the approval of the city council, forthwith to appoint three commissioners, to hold office until the expiration of two, three and four years respectively from May 1, 1875, and in every year after 1876 to appoint a commissioner to continue in office for three years from the first day of May; these commissioners to constitute a board of park commissioners, and any vacancy occurring therein to be filled in the same manner.

By § 3, "said board shall have power to locate within the limits of the city of Boston one or more public parks; and for that purpose, from time to time, to take in fee, by purchase or otherwise, any and all such lands as said board may deem desirable therefor; or to take bonds for the conveyance thereof to said city; to lay out, improve, govern and regulate any such park or parks, and the use thereof;" and generally to do all acts needful for the proper execution of the powers and duties granted or imposed by the statute: "provided, however, that no land shall be taken, or other thing involving an expenditure of money done, until an appropriation, sufficient to cover the estimated expense thereof, shall have been made by a vote of two thirds of each branch of the city council of said city."

By § 4, the board shall, within sixty days of the taking of any land under the statute, file a description thereof in the registry of deeds. By § 5, the board shall estimate and determine all damages sustained by the taking of land, or other acts of the board in the execution of its powers; but any party aggrieved by such determination may have his damages assessed by a jury in the Superior Court, as in the case of "damages sustained by reason of the laying out of ways in the city of Boston." By § 6, the fee of all lands taken or purchased by the board shall vest in the city of Boston; the city shall be liable to pay all damages assessed or determined as provided in § 5, and all other costs and expenses incurred by the board in the execution of its powers; and is also authorized "to take and hold in trust or otherwise any devise, grant, gift or bequest that may be made for the purpose of laying out, improving or ornamenting any parks in said city."

By § 7, "any real estate in the city of Boston, which in the opinion of said board shall receive any benefit and advantage from the locating and laying out of a park under the provisions of this act, beyond the general advantages to all real estate in the city of Boston, may, after like notice to all parties interested as is provided by law to be given by the street commissioners of the city of Boston in cases of laying out streets in said city, be assessed by said board for a proportional share of the expense of such location and laying out: provided, that the entire amount so assessed upon any estate shall not exceed one half of the amount which said board shall adjudge to be the whole benefit received by it."

By § 8, "no assessment shall be made as provided in the preceding section, except within two years after the passage of the order, the execution of which causes the benefit for which the assessment is made." By the subsequent sections, all assessments made under this statute shall constitute a lien upon the real estate so assessed; and any party aggrieved by any assessment may have the amount of the benefit received by his estate assessed by a jury, as in the case of the laying out of ways in Boston.

In 1877, by orders of the city council, passed by vote of more than two thirds of each branch, the park commissioners were authorized to expend the sum of $ 450,000, or so much thereof as might be required, to purchase one hundred acres of land or flats within certain boundaries in the Back Bay, so called; and the petition for a writ of certiorari alleges that thereafter, and before December 27, 1879, such lands and flats were purchased by the park commissioners, and conveyed to the city by deeds duly recorded and paid for by the city.

On December 18, 1879, the board of park commissioners passed an order, reciting that, "in the opinion of this board, it is desirable that a parcel of land belonging to the city of Boston" (then follows a description of the land and flats aforesaid) and certain parcels owned by other parties (likewise described) "should be taken and laid out as a public park," and directing...