Holt v. City Council of Somerville

• Citation: 127 Mass. 408
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 04 September 1879
• Parties: Chauncey Holt & others v. City Council of Somerville

127 Mass. 408

Chauncey Holt & others v. City Council of Somerville

Supreme Court of Massachusetts

September 4, 1879

Middlesex. Petition for a writ of certiorari to quash the proceedings of the city council of Somerville, claiming to act under the St of 1874, c. 97, in laying out and constructing a public park in Somerville, and in assessing betterments upon the estates of the petitioners. Hearing before Endicott, J., who reported for the determination of the full court the case which appears in the opinion.

Petition dismissed.

H. G Parker & S. Z. Bowman, (S. E. Sewall with them,) for the petitioner.

S. C Darling, for the respondent.

Colt J. Ames & Soule, JJ., absent.

OPINION

Colt, J.

By the St. of 1874, c. 97, the city of Somerville was authorized to take, by purchase or otherwise, certain described land situate within its limits, or any part thereof, for a public park. A description of the land taken was required to be filed, within sixty days, in the registry of deeds; and the city council was empowered to assess, within two years, a proportional share of the cost upon any real estate which, in its opinion, was benefited beyond the general advantage; but the assessment was in no case to exceed one half of the adjudged benefit. It further provided that the assessments shall constitute a lien, "and shall be collected and enforced with the same right to owners to surrender their estates, and the same proceedings thereupon, and the same rights of and proceedings upon appeal," as are provided by the St. of 1871, c. 382, entitled an act in relation to betterments.

1. The petitioners contend that the proceedings of the city under this act, and the assessments made upon their estates for benefits, are irregular and void, because those who had a right to surrender their lands were deprived of that right, by the failure of the city to give notice to them, either of the proposed laying out, or of the estimate of damages, or of the assessment of betterments. The St. of 1871, c. 382, is referred to in the act of 1874 as defining the right of surrender and the proceedings thereon. That statute gives to any person abutting on any street or highway, and liable to assessment for betterments, a right to surrender his estate "at any time before the estimate of damages is made." See also Sts. 1865, c. 159, § 10; 1866, c. 174, § 8; Dorgan v. Boston, 12 Allen 223, 241. The right of surrender is clearly confined to abutters, and it is unnecessary to decide whether sufficient notice was given to them, because it appears, by the answer of the city council, that all persons owning land abutting on the park had, before this petition was filed, released and conveyed the same to the city, unless the estates on the opposite side of certain county roads bounding the park on two sides are to be regarded as abutting estates. But these last-named estates are not abutting estates; they do not touch the land laid out by the city. The presumption, that land bounded on a highway extends to the centre of the way, does not carry them to the park line, because, by the description and plan filed in the registry of deeds, the park extends only to the side of the street, and the whole of the highway is excluded. Smith v. Slocomb, 9 Gray 36. Boston v. Richardson, 13 Allen 146. Philadelphia v. Eastwick, 35 Pa. 75. It also appears that all the owners of land actually taken were settled with, and conveyed titles by warranty deeds to the city, except one, whose claim has since been ascertained and paid. These petitioners accordingly had no right of surrender, because either they were not abutters, or had conveyed their abutting estates to the city, and it does not appear that they have suffered injury in respect to this right from any want of notice. Haskell v. New Bedford, 108 Mass. 208, 213. Embury v. Conner, 3 Comst. 511.

2. It is contended that the parties assessed were entitled to notice of the intention to levy the assessment, and opportunity to be heard, and that those whose lands were taken were entitled to notice of the taking. But the statute does not require notice either of the taking or of the intention to levy the assessment, and the rights of those whose lands are taken, or whose property is assessed, is amply secured by the opportunity to appeal to a jury if they are dissatisfied. Allen v. Charlestown, 111 Mass. 123. Butler v. Worcester, 112 Mass. 541, 555. Upon the question of the necessity of taking private property for public use, parties interested have no constitutional right to be heard. The authority to determine that question is in the state, or in the tribunals to whom the state has delegated the power. The appropriation of the property is an act of public administration, and the form and manner of its performance is such as the Legislature may, in its discretion, prescribe. Denio, J., in People v. Smith, 21 N.Y. 595, 597. Cooley Const. Lim. 538.

3. It is contended that, as the city was restricted to the taking of land, by purchase or otherwise, for the purpose of a public park, it had no power to purchase anything more than an easement in the land. But the purpose and the language of the statute show that it was intended to give the right to purchase the fee, if the city should so elect. The use of a public park is continuous, unlimited, and inconsistent with the existence and exercise of any private right therein. The legal title by such purchase became vested in the city, not for its own use in a corporate capacity, but in perpetual trust for the use of all who at any time might enjoy the benefit of a public park. Wrentham v. Norfolk, 114 Mass. 555. The possibility of a reverter, if any exist in this case, is too remote to affect the question of construction. The statute, so construed, does not violate any constitutional restriction, as an attempt to exercise judicial power, or as authorizing the taking of a greater interest in land than was necessary. Dingley v. Boston, 100 Mass. 544. Commonwealth v. Wilder, ante, 1. See also Heyward v. Mayor, & c. of New York, 3 Seld. 314; Brooklyn Park Commissioners v. Armstrong, 45 N.Y. 234.

4. It is no objection to the validity of the assessment that the order did not receive, in either branch of the city council, two several readings before its passage, as required by the rules of the city council. It is within the power of all deliberative bodies to abolish, modify or waive their own rules, intended as security against hasty or inconsiderate action. Bennett v. New Bedford, 110 Mass. 433.

5. The assessments now sought to be enforced were not annulled by the subsequent order modifying the same. ^[*] The lands were laid out for a park July 20, 1874; the order of assessment was passed July 17, 1876; the order modifying it was adopted July 9, 1877. The power of the city council to make an assessment was exhausted by the original order. That assessment was not treated as invalid by reason of any error or irregularity in the making of it; St. 1871, c. 382, § 2; and the power to make any further assessment was ended by the lapse of two years. The new order was not a new assessment, but only an order that payment of part of the sum assessed within a specified time should be a discharge; and this was accompanied with a direction that the collector enforce the original assessment after that time. The warrant was then in the hands of the treasurer and collector. A valid order of assessment cannot be rescinded at a subsequent meeting, after the warrant has been committed to the city treasurer, and notice given to the owners of assessed estates. Woodbridge v. Cambridge, 114 Mass. 483. ...