Hellen v. City of Medford
| Decision Date | 28 April 1905 |
| Citation | 188 Mass. 42,73 N.E. 1070 |
| Parties | HELLEN et al. v. CITY OF MEDFORD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Stephen H. Tyng and M. Lendsley Sanborn, for petitioners.
H. H Kimball and J. M. Hallowell, for respondent.
Under the authority of St. 1882, p. 111, c. 154, § 3, the park commissioners of Medford took certain land, and on November 29, 1900, filed a certificate as required by the fifth section. No entry ever was made upon the land. The taking was simply on paper. By virtue of the proceedings, however, the respondent became the owner in fee of the land, and was bound to pay to those whose estate had been taken the damages respectively suffered by them. St. 1882, pp. 111, 113, c 154, §§ 3, 6; Hay v. Commonwealth, 183 Mass. 294, 67 N.E. 334. At the time of the taking the land was owned by the petitioner Hellen in fee, subject to an outstanding leasehold estate for years owned by one Cutter. It does not appear that the damages were estimated or determined by the commission. Several months after the taking, and while the parties were trying to come to some agreement as to the damages, and before any agreement had been reached or any proceedings had been taken in court, St. 1900, p. 138, c. 196, was enacted. It provided that any part of the land or rights in land taken and described in the certificate of November 29, 1900, might in the manner set forth in the statute be abandoned; that such abandonment should 'revest the title to such land or rights as if they had never been taken, in the persons, their heirs and assigns, in whom it was vested at the time of taking'; and also that the abandonment might 'be pleaded in reduction of damages in any suit on account of said takings.' The land was all duly abandoned in accordance with the terms of the statute, and to this petition that fact was pleaded in reduction of damages. The lessee, Cutter, upon a citation from the petitioner, appeared in the suit, and claimed damages for the loss of his leasehold estate. At the trial the court refused to rule as requested by the petitioners that St. 1900, p. 138, c. 196 was unconstitutional, and submitted certain questions to the jury, who found, in substance, that the fair market value of the land at the time of the taking was $13,000; that the damage to Hellen by reason of the taking and abandonment was $1,000; that the damage to Cutter by the taking was $1,000, but, as reduced by the abandonment, nothing; and also that Hellen, by his agent, agreed that, if the property was abandoned by the respondent for his benefit, his damages would be very small. The court thereupon ordered a verdict for the petitioner Hellen for $1,000 and interest, and at the request of the petitioner the case was reported to this court.
The first question is whether St. 1900, p. 138, c. 196, is constitutional. In considering this question certain well-established rules must be borne in mind. Speaking generally, the power to take land for public use by right of eminent domain is limited not only as to quantity, but as to the nature of the interest taken, by the public necessity. It is said that 'the right, being based upon necessity, cannot be any broader than the necessity.' Cooley, Const. Lim. (7th Ed.) 808. It therefore generally happens that in cases of land taken under the exercise of this right only an easement is taken, the fee remaining in the owner. A familiar example of this is to be found in the case of land taken for a highway. In such a case, where the easement is lawfully abandoned or discontinued as no longer necessary, the fee is in the owner, free from the easement; but, as stated by Shaw, C.J., in Harrington v. County Commissioners, 22 Pick. 263, 267, 33 Am. Dec. 741, 'the enlarged enjoyment which the owner has thereby is not derived from the public, but is incident to the ownership which has always subsisted from the laying out of the highway.' And in the case of such a lawful abandonment or discontinuance before the assessment of damages there can be no doubt that the fact of such an ending of the easement can be put in evidence on the question of damages. But the ground of the admissibility of this fact is not that the thing once taken from the owner has been restored to him, but that the evidence tends to show the nature and extent of the thing taken. The thing taken is the use of the land for a highway so long as the public necessity requires, and the sum to which the owner is entitled is the damage by reason of such taking. And that is the rule of damage all the way through, as well at the time of the trial as at the time of the taking. The evidence of a lawful ending of the easement before the trial, whether by discontinuance or otherwise, is admissible, therefore, to make more certain the nature of the easement taken, but not to show that the right to damages has been changed. It is manifest that the lawful ending of such an easement by the public authorities impairs no right of the landowner as to damages. It tends only to define this right as it at first existed.
It is pretty generally conceded, however, in the various state courts, that in some cases it is competent for the state to take...
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