Loomis v. City of Boston

• Decision Date: 18 February 1954
• Citation: 331 Mass. 129,117 N.E.2d 539
• Parties: LOOMIS et al. v. CITY OF BOSTON. KAYE et al. v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 539

117 N.E.2d 539

331 Mass. 129

LOOMIS et al. v. CITY OF BOSTON.

KAYE et al. v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 9, 1953.

Decided Feb. 18, 1954.

Richard A. Kaye, Boston, for plaintiff.

William A. McDermott, Asst. Corp. Counsel, Boston, for defendant City of Boston and others.

Cornelius J. Moynihan, Joseph J. Gottlieb, Boston, for defendant Sears, Roebuck & Co.

Before QUA, C. J., and RONAN, SPALDING and WILLIAMS, JJ.

QUA, Chief Justice.

The Loomis case ¹ is brought by eleven taxpayers of Boston, under G.L. (Ter.Ed.) c. 214, § 3(11), to restrain the respondent city of Boston from selling or leasing to Sears, Roebuck and Co. under the supposed authority of St.1951, c. 199, land in Boston included within the description contained in the statute last cited, which is quoted in the footnote. ² The petition makes allegations as follows: The land to which this case relates has been used by the city as a public park for more than fifty years. It was conveyed by several deeds to the city in 1883 in fee 'for the purposes of a public park.' ³ The same land was also included in a taking by the city by eminent domain in 1890 under St.1875, c. 185, § 3, which authorized the city through its board of park commissioners to take land in fee for public parks. A sale or lease to Sears, Roebuck and Co. which intends to use the land as a parking lot, would, it is alleged, violate the trust upon which the city holds the land. The prayers are for injunctive and declaratory relief.

The Kaye case is brought by one taxpayer of Brookline and six taxpayers of Boston, against the city of Boston, its mayor, its commissioners of the park department, and Sears, Roebuck and Co. to obtain a writ of mandamus to prevent any sale or lease to Sears, Roebuck and Co. of a second parcel also included within the description contained in the statute and alleged to have been taken by the city for park purposes on April 30, 1890, under St.1875, c. 185. The respondents other than Sears, Roebuck and Co. deny the vital allegations of the petition. The respondent Sears, Roebuck and Co. besides denying the vital allegations of the petition, prays for a binding determination that the city may make the sale or lease in question.

Both cases were heard together before a judge of the Superior Court. He found that the land to which the second case relates 'was not landscaped and continued to have a barren appearance,' and was not attractive as a park. He found that 'extensive park land in the immediate vicinity is available for the use of the public.' He found that the Legislature did not act unreasonably, arbitrarily or capriciously in determining that the land involved in both cases is no longer needed for park or other public uses or in authorizing a sale or lease to Sears, Roebuck and Co.

The judge found that the city paid $33,669.90 for the land involved in the first case, that the land was not a gift, and that the words 'for the purposes of a public park,' occurring in the deeds, did not create a trust. He found that the petitioners do not have or claim any private interest in the land. He found that the taking by eminent domain annulled any trust that might previously have existed. He ordered the petition for a writ of mandamus dismissed, and reserved and reported both cases.

General Laws (Ter.Ed.) c. 214, § 3(11), provides for suits to enforce the purposes of 'any gift or conveyance which has been or shall have been made to and accepted by' any municipal corporation 'for a specific purpose or purposes in trust or otherwise'. The judge found that the words of the deeds did not create trusts, and we think he was right. The land was not donated to the city but was either conveyed and paid for or was taken by eminent domain. Nothing in the record suggests that the land conveyed was not paid for at its full value. It would be unusual, to say the least, for vendors to restrict by a trust to a single use land which the vendee had fully paid for. The words 'for...