Massachusetts Institute of Technology v. Boston Society Of Natural History

Decision Date08 June 1914
Citation218 Mass. 189,105 N.E. 874
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Report from Land Court, Suffolk County.

Proceeding by the Massachusetts Institute of Technology against the Boston Society of Natural History and others for registration of title. On report from the land court. Decree of registration authorized, subject to specified incumbrances.


Joseph B. Warner and R. W. Hill, both of Boston, for petitioner.

Chas S. Rackemann and Harrison M. Davis, both of Boston, for respondent Deland.

Edmund H. Talbot, of Boston, for respondents White, Wetherald, and Richards.

Hutchins & Wheeler, of Boston, for respondent Trinity Church.

Loring Coolidge & Noble, of Boston, for respondent Stuart.



We regard it as settled by the decision of this court in Wilson v. Massachusetts Institute of Technology, 188 Mass. 565, 75 N.E. 128, that the effect of the passage of St 1861, c. 183, and of the sales thereafter made by the commonwealth of the lots of land upon Boylston, Clarendon and Newbury streets facing the square described in that act was to create equitable easements or restrictions upon the land included in that square for the benefit of the subsequent purchasers of those lots. As to some of those lots, and as to one of those equitable easements or restrictions, it is conceded that the question has been concluded by the decision in the Wilson Case. We need not consider what further effect, if any, should be given to that decision as an adjudication; for we are satisfied with the reasoning of the opinion Schwoerer v. Boylston Market Association, 99 Mass. 285, 297, 298; Beals v. Case, 138 Mass. 138, 140; Codman v. Bradley, 201 Mass. 361, 87 N.E. 591; Childs v. Boston & Maine Railroad, 213 Mass. 91, 99 N.E. 957; Pierce v. Roberts, 57 Conn. 31, 17 A. 275; Hills v. Miller, 3 Paige (N.Y.) 254, 24 Am.Dec. 218; Lennig v. Ocean City Association, 41 N.J.Eq. 606, 7 A. 491, 56 Am.Rep. 16; Bridgewater v. Ocean City Railroad, 62 N.J.Eq. 276, 49 A. 801; Rowan v. Portland, 8 B. Mon. (Ky.) 232; Alderson v. Cutting, 163 Cal. 503, 126 P. 157, Ann.Cas. 1914A, 1; Rankin v. Huskisson, 4 Sim. 32; McLean v. McKay, L. R. 5 P. C. 327; In re Birmingham and District Land Co., [1893] 1 Ch. 342; Rowell v. Satchell, [1903] 2 Ch. 212. The act of 1861, as was pointed out in the Wilson Case, operated not only as a statute strictly so called, but also as a legislative grant and declaration, like a declaration of trust, for the establishment of stated rights in those who should become the owners of the 46 lots facing upon the square. Commissioners on Inland Fisheries v. Holyoke Water Power Co., 104 Mass. 446, 448, 6 Am.Rep. 247; Attorney General v. Gardiner, 117 Mass. 492, 499; Bradford v. McQuesten, 182 Mass. 80, 64 N.E. 688; Wisconsin Central Railroad v. Forsythe, 159 U.S. 46, 55, 15 Sup.Ct. 1020, 40 L.Ed. 71. As such, it became binding in favor of the purchasers of those lots when, acting, as it must be assumed Beals v. Case, 138 Mass. 138, 142) and indeed as it appears that they did, on the faith of this declaration of the commonwealth and paying an increased price by reason thereof, they made their purchases. As to them, the commonwealth became bound in equity by reason of its grant or declaration, just as a private person would have been. Com. v. Prop'rs of New Bedford Bridge, 2 Gray, 339, 350; Boston v. Richardson, 13 Allen, 146, 156; Boston Molasses Co. v. Commonwealth, 193 Mass. 387, 389, 79 N.E. 827. The act did not attempt to bargain away or to infringe upon the future exercise of any sovereign rights, and cases which deal with such a state of facts have no application here. See for example Newton v. Commissioners, 100 U.S. 548, 25 L.Ed. 710; Fox v. Cincinnati, 104 U.S. 783, 26 L.Ed. 928; Vicksburg, Shreveport & Pacific Railroad v. Dennis, 116 U.S. 665, 6 Sup.Ct. 625, 29 L.Ed. 770; Wisconsin & Michigan Railway v. Powers, Hubbell v. Warren, 8 Allen, 173, Boston Baptist Social Union v. Boston University, 183 Mass. 202, 66 N.E. 714, and Welch v. Austin, 187 Mass. 256, 72 N.E. 972, 68 L.R.A. 189. Since the act itself operates as a grant or a declaration of trust, it was not a merely verbal statement or one of which sufficient notice was not brought home to the parties, and other cases relied on by the petitioner are inapplicable, such as Sprague v. Kimball, 213 Mass. 380, 100 N.E. 622, 45 L.R.A.(N.S.) 962, Ann.Cas. 1914A, 431, and Renals v. Cowlishaw, 9 Ch. D. 125. There was a general scheme here for the development of the surrounding land, and this excludes such cases as Wills v. St. John, [1910] 1 Ch. 325. But we need not consider all the specific objections that have been suggested. We have weighed carefully all the contentions made in behalf of the petitioner, and have examined all the decisions to which we have been referred, as if the question were a new one. We are still content to adopt the reasoning of the Wilson Case, ubi supra, and to follow it as an authority.

But it is said that this ought not to be done, because, by consent of the parties in the Wilson Case, incompetent evidence there was considered. We are not prepared to say that all of this evidence was incompetent for all purposes. It doubtless is true that the rights of the owners of these lots depend upon the intention of the Legislature as displayed in the statute itself. Commonwealth v. Fitchburg Railroad, 8 Cush. 240; Boston & Providence Railroad v. Midland Railroad, 1 Gray, 340; Boston v. Talbot, 206 Mass. 83, 91 N.E. 1014; North British Railway v. Tod, 12 Cl. & Fin. 282. But this act operated, not only as a statute, but as an instrument creating rights in others; and it is competent to show the circumstances as they then existed. Browne v. Turner, 174 Mass. 150, 159, 54 N.E. 510; Old South Association v. Boston, 212 Mass. 299, 304, 99 N.E. 235; Cook v. Rea, 105 N.E. 618 (May, 1914). See also Beals v. Case, 138 Mass. 138; Commonwealth v. Dow, 105 N.E. 995 (May, 1914); Church of Holy Trinity v. United States, 143 U.S. 457, 462, et seq., 12 Sup.Ct. 511, 36 L.Ed. 226. The plans, deeds, catalogues of sales, etc., were not admissible to show the intention of the Legislature in the passage of the act. They could have no further effect than to identify the persons who became entitled to the benefit of the restrictions. The petitioner asked for a ruling to this effect, and it was given. The rulings

made on this point by the judge of the land court were sufficiently favorable to the petitioner.

Nor does it appear that the decision in the Wilson Case was made upon incompetent evidence. The court expressly declared that the existence of the restrictions depended upon the intention shown by the act, and that if such an intention was not found in the act itself, the restrictions could not arise from what later was done by the officers of the commonwealth.

One of the restrictions was that the square should be 'reserved from sale forever.' And this was recognized in the Wilson Case, 188 Mass. page 583, 75 N.E. page 132, as being one of the restrictions to which the petitioner's land was subject. But its effect was not considered, and now must be determined.

It is true that this restriction would be invalid if made by an individual. It is not so clear that the commonwealth, acting both as an owner of land and in its sovereign capacity, could not create such a restriction. Smythe v. Henry (C. C.) 41 F. 705. But this restriction must be taken in connection with all the other provisions of the act in which it is found and construed so as to carry out the evident intent of the Legislature rather than by a close adherence to its exact words. The provision is not barely that the land shall be reserved from sale forever, but that it shall be so reserved and 'kept as an open space or for the use of such educational institutions' as are afterwards mentioned. The manifest intention was to prohibit any sale which should interfere with the main object of the act, the object which the subsequent purchasers of the other lots were to pay for, that the square should be kept as an open space or used solely in the other manner stated. It was not intended to prohibit the passing of a bare legal title, but only such a sale as should avoid or endanger the main purpose which was declared. This was the construction adopted in McLean v. McKay, L. R. 5 P. C. 327. That bare legal title, so far as it still was held by the commonwealth, has been released to the petitioner by St. 1903, c. 438, but subject to the legal rights of all other parties and to certain additional restrictions. We are of opinion accordingly that the land is not now subject to the restriction that the mere legal title shall not be sold or transferred, but only to the other restrictions, created by St. 1861, c. 183.

The first one of these restrictions is in the alternative, that the land shall be kept as an open space or for the use of such educational institutions as are mentioned. And in view of the other provisions of the statute and of what has been done and the rights which have been acquired thereunder, we are of opinion that these educational institutions can be only the petitioner as to the westerly two third parts of the land. It follows that the petitioner's land, if not used for its educational purposes, is subject to the restriction that it must be kept as an open space. If it shall continue so to be used by the petitioner, it is subject to the further restriction that the petitioner shall not cover with its buildings more than one-third of the area of the land.

The respondents contend further that the present location of the buildings upon this land cannot be changed. The design and constriction of these...

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