MacDonald v. Bd. of St. Com'rs of Boston

• Decision Date: 19 July 1929
• Citation: 268 Mass. 288,167 N.E. 417
• Parties: MacDONALD et al. v. BOARD OF STREET COM'RS OF CITY OF BOSTON. UNION SAV. BANK et al. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 288

167 N.E. 417

MacDONALD et al.

v.BOARD OF STREET COM'RS OF CITY OF BOSTON.

UNION SAV. BANK et al.

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

July 19, 1929.

Report from Superior Court, Suffolk County; C. H. Donahue, Judge.

Suits by Thomas F. MacDonald and others and by the Union Savings Bank and others against the Board of Street Commissioners of the City of Boston. An order for final decree dismissed the bill, and cases were reserved for determination by the Supreme Judicial Court. Affirmed.C. S. Hill, F. D. Bonner, and H. V. Cunningham, all of Boston, for plaintiffs.

J. P. Lyons, Asst. Corp. Counsel, of Boston, for defendants.

RUGG, C. J.

These are two suits in equity, one by eleven taxable inhabitants of the city of Boston, the other by a corporation allowed to intervene as a party in interest in the first suit. The defendants are the individuals constituting the board of street commissioners of the city of Boston. Although the first suit is not alleged in terms to be brought under G. L. c. 40, § 53, whereby jurisdiction in equity is conferred upon the court at the suit of not less than ten taxable inhabitants to restrain the unlawful exercise or abuse of the corporate power of a municipality if it or any of its officers or agents ‘are about to raise or expend money or incur obligations purporting to bind’ the municipality for any object or in any manner not authorized by law, it is stated in the brief for the plaintiffs that it is so brought. The court has no other jurisdiction to consider that case on its merits. Baldwin v. Wilbraham, 140 Mass. 459, 4 N. E. 829.

Summarily stated, the allegations of the bill are as follows: For a considerable time the land on the easterly side of Tremont Street, in Boston, lying between Boylston and Lagrange streets, has been occupied by the Hotel Touraine. Tamworth Street, formerly Lowell Place, is situated directly east of the Hotel Touraine lot and extends from Boylston Street to Lagrange Street. Land of the Union Savings Bank is on the southeasterly corner of Tremont and Lagrange streets abutting on Lagrange Street at its point of intersection with Tamworth Street. Title to the land constituting Tamworth Street and comprising approximately forty-two hundred square feet was transferred to the city of Boston by the owners in 1879, the deed reciting that the grantors ‘are desirous that the said Lowell Place shall be laid out by the City of Boston as a public street.’ Following the description in the deed are these words: ‘The described premises are to be used for the purposes of a public street of the City of Boston and with the proposed grade thereof’ as shown on a described plan. This was followed by a covenant on the part of the grantors to make no claim for damages growing out of the laying out of the granted premises as a public street and the establishment of the grade thereof, with other covenants directed to this end. The deed stated further that the conveyance and release are ‘made on condition that if any betterments are assessed upon estate’ belonging to the grantors by reason of the laying out and construction of the street they shall be assumed and paid by the city. Thereafter the deed was duly recorded and Tamworth Street was laid out as a public way over the premises described in the deed. Simultaneously with the recording of this deed in 1880, the street commissioners, acting for the city of Boston, passed an order entitled ‘taking,’ which was in effect a taking of the land described by metes and bounds and a laying out of the same as a public way under the name of Tamworth Street and the establishing of its grade according to a designated plan. In this taking the land was described as ‘belonging to the City of Boston and others.’

Further allegations are that certain private persons for their own gain have formulated a plan to acquire the land now occupied by the Hotel Touraine and other parcels of land lying directly east of it abutting an the opposite side of Tamworth Street, and to acquire from the city of Boston or the owners the area now constituting Tamworth Street, for the purpose of erecting upon all these parcels a single, large, modern building, thus obliterating Tamworth Street, that contracts for the purchase of several parcels of land other than Tamworth Street have been made conditioned upon the discontinuance of Tamworth Street as a public way and the conveyance of the same from the city of Boston; that in execution of this plan the present owners of the premises abutting on Tamworth Street have filed a petition with the defendant street commissioners praying in substance for the discontinuance of Tamworth Street as a public way; that notice in due form dated January 31, 1929, has issued on the petition wherein it is declared in substance that ‘this Board is of the opinion that * * * a public improvement should be made, consisting of the discontinuance as a highway, of Tamworth Street, * * * that it intends to pass an order for making said improvements,’ and appointing a time and place ‘for a public hearing in the matter.’ There are further allegations of the public necessity and importance of Tamworth Street and the harm to the public that will arise from its discontinuance; that such discontinuance ‘will be ultra vires of the defendant Street Commissioners; that the said discontinuance is not only unnecessary but is distinctly prejudicial to the public safety, and is illegal as being a departure from the original grant and a direct repudiation of the public trust created in the said deed, and that the effect of such discontinuance will be to deprive the public of the City of Boston of that use and advantage intended to be given to said public under said deed. Your plaintiffs further allege that the intentions of said Street Commissioners as set forth in their notice and their express determination to discontinue said way as set forth in their said notice, and the act of discontinuance contemplated by them are ultra vires and illegal in that the defendants are not proceeding, and, so far as your plaintiffs are aware, are taking no steps whatever to proceed in accordance with the provisions of General Laws, Chapter 40, Section 15, and other laws in the premises made and provided.’ Final allegations assert the rights of the petitioners to the continuance of Tamworth Street as a public way, and that they have no other adequate remedy. The prayers of the bill are for preliminary and final injunctions to restrain the defendants from holding the hearing and from taking any steps to discontinue Tamworth Street.

The bill of the Union Savings Bank follows the same general lines but alleges the fair market value of the land included within Tamworth Street to be several hundred thousand dollars, and alleges also special and private interest, by reason of its ownership of land at the corner of Tremont and Lagrange Streets, to the free, unrestricted and and continuous passage in Tamworth Street. The cases were submitted on an agreed statement of facts which included in substance the allegations just summarized so far as they concern facts without the inferences, consequences, and assertions and conclusions of law there set forth. Additional aggreed facts are that the defendants individually had knowledge of the proposed plan at the time of the filing of the petition before them as public officials, but that the matter had not been presented to the board officially except by the petition. Since its laying out in 1880, Tamworth Street has been used as a public way and in its immediate vicinity considerable business is carried on and places of amusement, recreation, refreshment and for large assemblages of people are located. The land comprised within the limits of Tam worth Street as laid out contains about forty-two hundred square feet and is of substantial value. It was also agreed that at the time the order of notice was issued by the defendants they were of the opinion that the discontinuance of Tamworth Street would be a public improvement and that the discontinuance of said street would not result in public injury; that in their opinion said Tamworth Street served no useful public utility; that it was a narrow street with a sidewalk of about two feet in width; that it was used but little for traffic purposes and that it was used largely for the parking of automobiles; that at the time of the bringing of these suits the defendants had not officially determined to discontinue the street although the members were of the opinion that its discontinuance would be beneficial to the public; that the order of January 31, 1929, was passed for the purpose of enabling the defendants to give a public hearing as required by statute so that all parties interested would appear before them and they would hear arguments on all points involved; that on account of the filing of these bills no such hearing has been held and no final decision reached. There are no allegations of fraud, bad faith, or corruption on the part of the defendants, and no agreed facts of that nature or inducing that inference.

An order was...