in re Opinion of the Justices
| Decision Date | 31 March 1910 |
| Parties | In re OPINION OF THE JUSTICES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Eminent Domain 18
148 ----
148I Nature, Extent, and Delegation of Power
148k18 Public Buildings or Grounds, or Other Purposes of Government.
A city taking land for widening a highway, may not, in connection therewith take additional land, with a view to a subsequent sale thereof at full value, though the taking of the additional land is necessary to promote adequately the commercial and industrial welfare of the city, such an enterprise not being a public use, within the Constitution and it is immaterial that public funds are not to be used for the construction of buildings on the additional land.
148 ----
148I Nature, Extent, and Delegation of Power
148k18 Public Buildings or Grounds, or Other Purposes of Government.
A city may not take land outside a public work for speculative purposes, but there may be such a remnant of an estate, a part of which is necessarily taken, so small, or of such a shape, and of so little value, that the taking of it in the interest of economy or utility may be fairly incidental and reasonably necessary in connection with the taking of land for the public work.
OPINIONOpinion of the Justices of the Supreme Judicial Court in response to the following order of the Senate:
Ordered that the opinion of the Justices of the Supreme Judicial Court be required by the Senate upon the following important questions of law, namely:
First. Is it within the power of the Legislature, under the circumstances hereinbelow set forth, to authorize, in connection with the widening of a highway or the laying out of a new highway in the city of Boston, the taking by eminent domain, for and in the name of and for the sole use of said city, of real estate in excess of those parcels which in whole or in part are necessary for highway itself with a view to the subsequent sale by said city of such excess at its full value, subject to restrictions or conditions designed to promote the public purposes hereinafter set forth; provided such taking is necessary to promote duly and adequately the commercial and industrial welfare or growth of the municipality in which the way is situated by insuring opportunity for the construction along said highway of buildings comporting with its importance and its use for the purposes to serve which it is laid out and adapted to modern requirements of commerce, trade and industry and especially to the requirements of those forms of business which to a large extent employ teaming, thereby relieving congestion of teaming traffic on streets in the vicinity or at least helping to prevent an increase thereof and so facilitating the transportation of freight and passengers through the section of the city in which the way is located?
Second. If, in addition to the provisions outlined above, an act were to contain provisions similar in character to those in section 6 of chapter 443 of the Acts of the year 1904, would the reply to the first question, if in the negative, be modified thereby?
It is to be assumed that the act is to contain proper provisions as to compensation for damages suffered and is not to contain any provision authorizing the expenditure of public funds for the construction of buildings on land taken; that necessity for the taking is based on finding that owing to the irregularity of the streets and the smallness of the lots in that portion of the city through which such highway would be laid out, areas of size and shape suitable for the construction along such highway of warehouses, mercantile and manufacturing establishments and other buildings, comporting with its importance and its use for the purposes to serve which it is laid out, cannot be secured through the exercise of eminent domain as now limited by law and could seldom if ever be secured by combination of estates through voluntary sale and purchase and then only after long delays injurious to the public welfare, and also that such takings would not be for any private use but solely for the public benefit as above set forth.
The foregoing questions are of present importance because under the report of the joint board on Metropolitan improvements,...
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