In re Mayor and Aldermen of Taunton
| Decision Date | 07 March 1935 |
| Citation | 194 N.E. 919,290 Mass. 118 |
| Parties | In re MAYOR AND ALDERMEN OF TAUNTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Reservation and Report from Superior Court, Bristol County Hanify, Judge.
Petition by the Mayor and Aldermen of Taunton for the abolition of a grade crossing, wherein the Kidder Peabody Acceptance Corporation filed a petition to intervene. Decree denying the petition. On reservation and report.
Decree affirmed.
T. Hunt, of Boston, for Kidder Peabody Acceptance corporation.
M. Jenckes, of Boston, for New York, New Haven & Hartford Railroad.
E. Warner, Atty. Gen., and E. T. Simoneau, Asst. Atty. Gen., for the commonwealth.
The mayor and aldermen of Taunton in 1909 filed a petition in the superior court for the abolition of certain grade crossings. The matter was referred, under St. 1906, c. 463, pt. 1, §§ 29-45, relating to abolition of crossings then in force, to a special commission whose report to the effect that certain grade crossings ought to be abolished was confirmed by the court by decrees dated June 10, 1913, and October 1, 1914. That commission reported that a substantial area of land then owned by the predecessor in title or assignor of The Kidder Peabody Acceptance Corporation should be taken for carrying out the scheme of abolition. No work of abolition was begun and in 1914 the original petitioners requested an order to compel the railroad to begin the work of abolition. A decree was entered on February 6, 1917, that the railroad commence the work in one year and complete it within three years and a half from that date, but exceptions were filed and an appeal was taken from that decree and a reservation and report of the questions involved are still pending. Meanwhile, on a bill of review filed by the New York, New Haven & Hartford Railroad Company, the earlier decrees of 1913 and 1914 were reversed on May 26, 1926, and it was ordered that the case stand for further proceedings. See Boston & Maine Railroad v. Greentield, 253 Mass. 391, 149 N.E. 322.
The Kidder Peabody Acceptance Corporation in 1923 filed a petition for the assessment of damages for land taken by the 1913 decree. That petition was dismissed in 1926 as prematurely brought because under St. 1906, c. 463, pt. 1, § 37, in effect at the time of the taking, the remedy provided for damages caused by such a taking was to be had by petition ‘ brought within one year after the time the property is entered upon and work actually begun thereon,’ and it was agreed that there had been no entry upon the land no work of abolition had begun. Kidder Peabody Acceptance Corp. v. Old Colony Railroad, 256 Mass. 41, 152 N.E. 313.
Nothing more was done until March 8, 1932, when a petition to intervene in the original proceedings was filed by The Kidder Peabody Acceptance Corporation. The questions now before us arise on this petition. It contains allegations that the petitioner subsequently to the 1913 taking acquired from the former owner of the land so taken, what remained of that realty together with its right to recover damages on account of the taking; that title to the land in question at and prior to the decree of 1913 was in a corporation and that by mesne conveyances it came to the petitioner to intervene in 1921 together with assignment of right to recover damages for the taking of land for abolition of the grade crossings. It contains specifications of the damages sustained, and prayers that the petitioner be admitted a party in the cause, and recover those damages from the parties chargeable in accordance with the provisions of St. 1906, c. 463, pt. 1, §§ 29-45. At the hearing upon this petition it was agreed that no actual work of abolition had ever been done in accordance with the 1913 and 1914 decrees. A decree was entered ‘ that the petition be and hereby is denied as a matter of law and not as a matter of discretion.’ The trial judge reported the questions of law raised by the petition for determination by this court.
The decree of the court in 1913 contained a clause to the effect that the report of the special commission providing for the abolition of the grade crossings and the taking of the land in question ‘ be and the same is hereby accepted and confirmed’ except as to one matter, not here material. It was provided by St. 1906, c. 463, pt. 1, § 36 (repealed by G. L. c. 282) that a decree of the court confirming a decision of the special commission to the effect that the location of a railroad be changed ‘ shall constitute a taking of the specified land, easement or other property.’
Extensive modifications were made in the law as to abolition of grade crossings by St. 1930, c. 417 (see St. 1934, c. 357). Original jurisdiction over the subject was thereby vested in large measure in the department of public works, and the sections of the General Laws corresponding to the sections of the statute under which the petition was filed in 1909 and was prosecuted were either modified or repealed. By section 14 the act became operative on September 1, 1930, with a proviso that it should ‘ not apply to any grade crossing on which any actual work of abolition has been commenced prior to’ that date, with an exception not here relevant.
The provisions of the governing statute already quoted at the crucial times here pertinent were that the decree of the court confirming the report of the special commission describing land to be taken constituted a taking of the specified land and that a petition for the assessment of damages could be brought only within one year after the time the property is entered upon and work actually begun thereon. These two provisions must be construed, if reasonably practicable, so as to make an harmonious, consistent and effective body of law. These provisions mean that there can be no recovery of damages by the landowner until there has been an entry upon the land. That was decided as to the land here in question by Kidder Peabody Acceptance Corp. v. Old Colony Railroad, 256 Mass. 41, 152 N.E. 313. The mere paper taking of land gives no right to damages. It cannot be presumed that the general court intended that such a paper taking not followed by work of actual construction should constitute a divestment of the title of the owner of the land and a transfer of such title to the railroad corporation or municipality, because no provision was made for damages in that event. An absolute transfer of such title complete in itself by the entry of the decree would not be constitutional without a provision for damages. It is required by article 10 of the Declaration of Rights that ‘ whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.’ Brickett v. Haverhill Aqueduct Co., 142 Mass. 394, 396, 8 N.E. 119; Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray, 1, 35; Connecticut River Railroad v. County Commissioners, 127 Mass. 50, 52,34 Am.Rep. 338; Lincoln v. Commonwealth, 164 Mass. 368, 375, 41 N.E. 489.
The power to seize private property for a public use has been conferred in a great variety of words and by some diversity of means. The word ‘ taking’ as applied to the exercise of the power of eminent domain has different meanings and may be accomplished by divers methods. Sometimes a physical act of seizing possession alone is enough. Sometimes that act must be followed by placing some instrument on a public record as a condition subsequent. Sometimes the filing of a paper taking in the registry of deeds alone passes title. See Turner v. Gardner, 216 Mass. 65, 103 N.E. 54, for a review of cases. Byfield v Newton, 247 Mass. 46, 56, 57, 141 N.E. 658; Breckwood Real Estate Co. v. Springfield, 258 Mass. 111, 154 N.E. 552; Choate v. Sharon, 259 Mass. 478, 156 N.E. 727; Radway v. Selectmen of Dennis, 266 Mass. 329, 334, 165 N.E. 410. The kind of taking which arises when a paper record has been made without actual entry under statutes similar to St. 1906, c. 463, pt. 1, §§ 36, 37, has been described as an ‘ incipient appropriation of the land to public use’ in case the public work is finally constructed. Edmands v. Boston, 108 Mass. 535, 551; Munroe v. Woburn, 220 Mass. 116, 121, 107 N.E. 413. This is a strictly accurate description. The paper taking is merely a first step in the exercise of eminent domain and not a final act. The appropriation of the land to public use does not become complete until finished...
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