In re Certain Land in Lawrence

• Decision Date: 22 October 1902
• Docket Number: 1,327.
• Citation: 119 F. 453
• Parties: In re CERTAIN LAND IN LAWRENCE.
• Court: U.S. District Court — District of Massachusetts

119 F. 453

In re CERTAIN LAND IN LAWRENCE.

No. 1,327.

United States District Court, D. Massachusetts.

October 22, 1902

Henry P. Moulton, U.S. Atty., and William H. Garland, Asst. U.S Atty.

John P Sweeney and John P. Kane, for city of Lawrence.

James R. Dunbar and Stimson & Stockton, for Essex Co.

LOWELL District Judge.

This is a proceeding to take land for a post office in Lawrence. The Essex Company once owned the land, and has never conveyed it by deed. The city of Lawrence has filed an intervening petition, which sets out:

'First. That said land was by the former owner thereof dedicated to the inhabitants of the said city of Lawrence for use as a public park; that said dedication was accepted, and said land has been so used and enjoyed by the public under said dedication for a period of forty years and upwards; and that the city of Lawrence is now the owner in fee of said land. Second. That said land has been used by the public as a public park, and also as a means of access by paths across the same, adversely, continuously, and uninterruptedly, for a period of more than twenty years and that the city of Lawrence has acquired title to said land by prescription, or at least has acquired a prescriptive right of way across said land.'

For the purpose of the case, it is assumed that the evidence would show an uninterrupted public user for more than 20 years, and would also show the designation of the land as a park upon plans made more than 20 years ago by the Essex Company. There was no other positive act by the company, and no formal act by the city government.

This land is condemned, by virtue of any paramount authority of the United States, but by virtue of authority delegated to the United States by the commonwealth of Massachusetts. Const. U.S. art. 1, Sec. 8; Rev. Laws Mass. c. 1, Sec. 7; Burt v. Insurance Co., 106 Mass. 356, 8 Am. Rep. 339. It follows that these proceedings are governed by the laws of Massachusetts, and that the rights of the city to the land in question are determined by those laws. So far as applicable, the decisions of the Massachusetts supreme court control this court.

That a town may acquire a right of way by prescription was decided in Deerfield v. Railroad, 144 Mass. 325, 11 N.E. 105, and doubtless it may in appropriate case acquire a fee. See City of Boston v. Richardson, 105 Mass. 351, 357. But the cases cited show that rights thus acquired are altogether different from those asserted by the city of Lawrence in the case at bar. They are not public, but private to the city. See Green v. Inhabitants of Chelsea, 24 Pick. 71, 79. The interest of the city of Lawrence in the land in question, whatever it may be, is an interest for the use and benefit of the public, and not such a private interest as a municipality may have in real estate. Oliver v. City of Worcester, 102 Mass. 499, 3 Am.Rep. 485; Proprietors of Mt. Hope Cemetery v. City of Boston, 158 Mass. 509, 519, 33 N.E. 695, 35 Am.St.Rep. 515. A park is in that class of municipal property which includes highways and schoolhouses, not in the class which includes city halls. Counsel for the Essex Company has contended that property so held by the municipality is in the control of the state for the benefit of the public, and that, in the absence of express statute, the attorney general alone can maintain an action for the defense of the public rights. Attorney General v. Abbott, 154 Mass. 323, 28 N.E. 346,

13 L.R.A. 251. That case held, also, that the fee in land dedicated by an individual for a public park remains in the individual. It seems, then, that, whether the right to public use arises from dedication or prescription, there is no title in the municipality to easement or fee. 'A town does not in such case own the land over which a way passes. Nor does it own the easement created by the construction of the way. That belongs to the public. ' Inhabitants of Cheshire v. Adams & C. Reservoir Co., 119 Mass. 356, 357.

But in some cases a municipality is permitted to maintain suit by virtue of its interest and of the interest of its inhabitants in property held for the public benefit. In Inhabitants of Springfield v. Connecticut River R. Co., 4 Cush. 63 a suit was maintained by a town to prevent interference by a railroad with a highway laid out in part by the county commissioners, and in part by the selectmen. The fee in the land was not in the town, and the use was public. In Easthampton v. County Com'rs, 154 Mass. 424, 28 N.E. 298, 13 L.R.A. 157, the town of Easthampton sought to prevent the county commissioners from laying out a highway over land belonging to the town, and used in connection with a schoolhouse. Whether the town of Easthampton had the fee in the land, or only an easement, does not appear. The court made no question that the town was a proper p...