Lowell v. City of Boston

• Decision Date: 17 April 1948
• Citation: 79 N.E.2d 713,322 Mass. 709
• Parties: LOWELL et al. v. CITY OF BOSTON et al. PLERCE et al. v. CITY OF BOSTON. McCARTHY et al. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 709

79 N.E.2d 713

LOWELL et al.

v.CITY OF BOSTON et al.

PLERCE et al.

v.CITY OF BOSTON.

McCARTHY et al.

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

April 17, 1948.

Report from Superior Court, Suffolk County; Hanify, Judge.

Action by Alfred P. Lowell and others against the City of Boston and others to restrain the respondent municipal officials from imposing unauthorized financial obligations on the city, heard together with an action by Myron E. Pierce and others against the City of Boston to determine a gift and trust and to restrain any use of land inconsistent with the gift wherein the city sought a declaratory decree, and an action by Anna C. McCarthy and others against the City of Boston to enforce the terms of the gift. The cases were reported on the pleadings, evidence, rulings on evidence and exceptions thereto and findings of fact.

Petitions and counterclaim in Lowell case dismissed and decree on counterclaim to the Pierce petition determining that the city has title to a common and public garden subject to an easement in favor of the general public for purpose of public park.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and WILLIAMS, JJ.

J. E. Hannigan, of Boston, for petitioners.

J. W. Kelleher, Asst. Corp. Counsel, and W. H. Kerr, both of Boston, for City of Boston, Mayor of Boston and Board of Park Commissioners.

H. W. Cole, of Boston, for Motor Park, Inc.

W. C. Madden, of Cambridge, for petitioners McCarthy and others.

F. H. Smith, Jr., of Boston, a petitioner, submitted a brief.

F. W. Grinnell, of Boston, amicus curiae.

RONAN, Justice.

Lowell and more than ten taxpayers of the city of Boston brought a petition under G. L. (Ter. Ed.) c. 40, § 53, against the city, its mayor and board of park commissioners, and the Motor Park, Inc., a private corporation, to restrain the respondent municipal officials from imposing unauthorized financial obligations upon the city which, it is alleged, will result from entering into a contract with that private corporation, by the park commissioners with the approval of the mayor, as provided in St. 1946, c. 294. The object of the contract will be to construct and operate an underground garage for the parking of automobiles under the Boston Common, with a vehicular tunnel from Commonwealth avenue under the Public Garden to the garage and an underground passage for patrons and employees from the garage to Tremont Street near West Street. The petition prays for an injunction against leasing the site of the proposed garage to the private corporation, as those officers intend to do. It is also alleged that this proposed use of the Common would be contrary to the terms of certain testamentary gifts which the city has accepted. The city in its answer sought a declaratory decree that St. 1946, c. 294, was valid and that it held an unencumbered title to the Common and Public Garden.

The second petition was brought against the city alone by leave of court by Pierce and not less than ten other taxpayers of the city, alleging that the city holds Boston Common ‘and its accessory the Public Garden’ by a gift made in 1634 to the town for the use primarily by its inhabitants as a Common, and that the city holds the title in a trust relation to those for whose use the land as a Common was provided; and praying that the gift and trust be determined, the purposes of the gift be enforced, and any use of the land inconsistent with the gift be restrained. The petition as amended alleges that the city accepted a gift under the will of George Francis Parkman, the income of which was to be used for the maintenance and improvement of the Common and parks of the city, and that the city intends to divert the use of the Common to another use which would constitute a violation of its acceptance of the Parkman gift. In this suit the city sought a declaratory decree under G. L. (Ter. Ed.) c. 231A, as inserted by St. 1945, c. 582, § 1, that St. 1946, c. 294, is a valid enactment; that the city is empowered to act under the provisions of said statute; and that the use of Boston Common and the Public Garden by the city is subject only to such restrictions as may be imposed by the Legislature which represents the interest of the general public in the use of said land.

The third petition was brought by McCarthy and others against the city by leave of court under G. L. (Ter. Ed.) c. 214, § 3(11), to enforce the terms of the George Francis Parkman gift which was given to and accepted by the city. The city denies that the execution of a lease to a private corporation in accordance with St. 1946, c. 294, will impair the obligations imposed on the city by its acceptance of the Parkman gift.

These three petitions were heard together upon oral testimony which related chiefly to the construction and operation of the proposed garage and the manner and extent in which it might affect the Common. The principal evidence, however, which pertained to the origin, history and use of the Common consisted of documentary evidence comprising public records, ancient maps, plans, photographs, various written instruments and historical books. The judge made findings of fact and reported the cases to this court on the pleadings, the evidence, his rulings on evidence and exceptions thereto, and his findings of fact, such decrees to be entered as justice and equity may require. Questions of evidence have not been argued.

The present Common is bounded by Charles Street one thousand three hundred sixty feet, Beacon Street one thousand seven hundred sixty feet, Park Street four hundred eighty feet, Tremont Street one thousand six hundred eighty feet, and Boylston Street seven hundred sixty feet. Forty-four acres of the original location were acquired from William Blackstone in 1634. A parcel of two and one eighth acres located at what is now the corner of Tremont Street and Boylston Street, known as the Deer Park, which was acquired by the town in 1787, and the parcel adjoining on the west and abutting on what is now Boylston Street, which was purchased by the town in 1756 and used for a burial ground, consisting of one and four tenths acres, were added to the Blackstone land. The land known as the Common in the early days of the Colony extended far beyond its present boundaries. For instance, it extended on the north beyond what is now Park Street and on the east beyond what is now Tremont Street. Its original area has since been diminished but its boundaries have only been slightly changed during the last century, and the changes which have been made during that period have been due principally to the widening of some of the adjoining streets. The present boundaries have long become well established. Old photographs show the existence of fences. The city council of Boston in 1836 voted to erect an iron fence around the Common.

1 For many years a metallic ornamental fence surrounded the Common. A part of that fence is missing. It has been said that a portion of it was contributed to the war effort in the last World War. The area of the Common is forty-eight and forty hundredths acres.

The Public Garden is bounded by Boylston, Arlington, Beacon and Charles streets. The Blackstone grant of 1634 did not include the present site of the Public Garden, but by operation of the Colonial ordinance of 1647 the flats adjoining the Common on the southwest went to the owner of the uplands and included the land now occupied by the Public Garden. The town sold this land in 1794 to be used for the manufacture of rope, and it was repurchased by the city in 1824. The buildings were removed by the city, the land was completely filled, and for nearly a century it has been used for flower gardens, shade trees, walks, statues, and works of sculptural art, all intended for the enjoyment and edification of the public. The area of the Public Garden comprises twenty-four and twenty-five hundredths acres.

George Francis Parkman, a resident of Boston, who died in 1908, by his will left the residue of his estate amounting to approximately $5,000,000 to the city for the purchase and improvement of certain land for a public park, and by a codicil he left the residue of his estate to the city, the income of which was to be applied to the maintenance and improvement of the Common and the existing parks. The gift was accepted by the city and the income totalling approximately $7,500,000 has since been used by the city in accordance with the terms of the will.

The parties are at issue as to the nature of the title to the Common which vested in the town in 1634. The Lowell petition alleged that the town acquired the title to the Common in 1634 from the early inhabitants, who by individual contributions paid William Blackstone for a conveyance of the land, and that the town accepted the title subject to laying out the land as a training field and administering it for the common good of all the inhabitants forever. The Pierce petition alleged that the Common was given to the town in 1634, that the city as successor to the town holds the Common and the Public Garden for the use of its inhabitants and the public as a Common, and that it now holds the title in a trust relation to the people for whose use as a Common the property was provided. The McCarthy petition alleged that the town held from the time immemorial only a bare technical title to the land of the Boston Common without any of the incidents of ownership but in trust only for the specific uses and purposes for which it was dedicated. To these allegations the city answered that the town acquired title to the Common in 1634 by purchase from William Blackstone for thirty pounds, which was not obtained from individual contributions of the inhabitants but was raised by taxation, and that the town by the terms of the purchase acquired the land in fee simple subject to no conditions of any kind.

The judge found that the town acquired title in 1634 from its then inhabitants...