Lowell v. City of Boston

• Decision Date: 17 May 1948
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ALFRED P. LOWELL & others v. CITY OF BOSTON & others(and two companion cases [1]).

322 Mass. 709

79 N.E.2d 713

ALFRED P. LOWELL & others v. CITY OF BOSTON & others(and two companion cases ^[1]).

Supreme Judicial Court of Massachusetts, Suffolk.

May 17, 1948

February 3, 4 1948.

Present: QUA, C.

J., LUMMUS, RONAN WILKINS, & WILLIAMS, JJ.

Boston Common. Parks. Municipal Corporations, Parks, Charitable trust. Trust, Charitable trust. Dedication. Real Property Dedication. Devise and Legacy, Charitable trust, Codicil. Words, "Hope and expectation."

Upon documentary evidence introduced at a full hearing upon the merits of petitions in equity presenting for determination the nature of the ownership of Boston Common, a finding was required that the title to the

Common was in the city of Boston, not subject to any trust, but subject to a dedication of the Common to use by the public as a public park.

Boston Common and the rights of the public to use it as a public park are subject to the paramount authority of the General Court.

Upon evidence only of preliminary sketches and tentative plans furnishing a rough outline of a garage proposed to be constructed under Boston Common pursuant to authority given by St. 1946, c 294, it could not be assumed that the garage would be located, constructed and operated without reasonable regard to the use of the Common by the public.

It was within the competency of the General Court to enact St. 1946, c.

294, which, after declaring that the congestion of the public ways of Boston caused by increased use of motor vehicles and parking of them in such ways had become a public nuisance which could not be abated except by the construction and maintenance of a garage under the Boston Common, authorized the city of Boston, acting through its park department with the approval of the mayor, to contract with a private corporation for the construction and operation, at the expense of the corporation and without cost to the city, of a garage under a certain portion of Boston

Common, with necessary approaches and entrances, and to give a lease to the corporation for such purposes for not more than forty years at a certain minimum rent, with appropriate requirements for preservation or restoration of the gardens, lawns, trees and shrubs, even if comparatively small areas of the surface of the Common would be withdrawn from public use at the places of ingress to and egress from the garage.

A new plan adopted by a codicil to the will of George Francis Parkman differed from that in the will only with respect to particular pieces of land to be maintained and improved by the city of Boston as parks from the income of a bequest in trust; the testator's intention was that the benefaction for the Boston Common expressed in the codicil should be upon the same terms as those expressed in the will.

A provision in the will of George Francis Parkman that a bequest in trust, which was to be used for the maintenance and improvement "of the Boston

Common" was made "in the hope and expectation that the Boston Common shall never either in whole or in part be diverted from the present use as a Public Park for the benefit and enjoyment of . . . citizens" of

Boston, did not impose a limitation or condition which constituted an integral and essential part of the trust.

Withdrawal from public use of comparatively small areas of Boston Common for entrances to and exits from a garage constructed thereunder pursuant to the provisions of St. 1946, c. 294, would not constitute a breach of any mandatory and essential provision contained in the trust for the benefit of the Common created by the provisions of the will and codicil of George Francis Parkman.

THREE PETITIONS, filed in the Superior Court respectively on August 23, 1946, September 12, 1946, and February 11, 1947.

The cases were heard together by Hanify, J., who made certain findings and reserved and reported the cases for determination by this court.

J. E. Hannigan, for the petitioners.

J. W. Kelleher, Assistant Corporation Counsel, (W.

H. Kerr with him,) for the respondents city of Boston and others.

H. W. Cole, for the respondent Motor Park, Inc.

W.

C. Madden, for the petitioners McCarthy and others, submitted a brief.

F. H. Smith, Jr., a petitioner, submitted a brief. F. W. Grinnell, by leave of court, submitted a brief as amicus curiae.

RONAN, J. Lowell and more than ten taxpayers of the city of Boston brought a petition under G. L. (Ter. Ed.) c. 40, Section 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, Section 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, Section 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...