McCarthy v. Woburn Housing Authority

• Decision Date: 07 December 1960
• Citation: 170 N.E.2d 700,341 Mass. 539
• Parties: Warren E. McCARTHY, trustee, v. WOBURN HOUSING AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 700

170 N.E.2d 700

341 Mass. 539

Warren E. McCARTHY, trustee, v. WOBURN HOUSING AUTHORITY.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 7, 1960.

Decided Dec. 7, 1960.

Philip B. Buzzell, Boston (George H. Kidder, Boston, with him), for demandant.

George P. Lordan, Cambridge, for tenant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

SPALDING, Justice.

This writ of entry is brought to recover three parcels of land taken for a housing project. It is grounded on an alleged illegal taking. The decision below was for the tenant. The case is here on exceptions by both parties.

The judge made findings of fact which we summarize as follows: In 1952 the Woburn Housing Authority (hereinafter called the tenant) submitted to the State Housing Board an application for State financial assistance for a housing project under G.L. c. 121, which was designated State-Aided Project 200-3. It was to be constructed, in part, on the demandant's land. On December 31, 1952, a contract for State financial assistance was signed by the State Housing Board guaranteeing the notes to be issued by the tenant to finance the project. This contract was executed in quadruplicate and was signed by the mayor of Woburn, who retained one of the copies. Several amendments to the contract, not here relevant, were subsequently made in like manner. On March 15, 1954, the State Housing Board, specifically referring to the demandant's land, informed the tenant that it was authorized to make takings by eminent domain and that the practice was to give the contract for financial assistance as security for such takings.

By an order of taking dated April 29, 1954 (duly recorded May 17, 1954), the tenant made a taking in fee of four parcels of vacant land, three of which were owned by the demandant as trustee. The order of taking contained a recital that in accordance with G.L. c. 121, § 26P(b), and G.L. c. 79, § 40, the housing authority had deposited with the mayor of Woburn security to his satisfaction for the payment of such damages as might be awarded for the takings. The demandant received due notice of the taking and thereafter brought a petition for the assessment of damages under G.L. c. 79. This petition has never been heard on the merits and is still pending.

The principal issues in the court below were (1) whether the demandant by bringing his petition for the assessment of damages foreclosed his right to challenge the legality of the taking, and (2) whether the taking was illegal by reason of noncompliance with the provisions of G.L. c. 121, § 26P, and c. 79, § 40, requiring security. The judge ruled, subject to the tenant's exception, that the demandant by bringing his petition was not precluded from attacking the legality of the taking. He also ruled, subject to the demandant's exception, that the security requirements of the above mentioned statutes had been satisfied.

Section 26P(b) of G.L. c. 121 provides that in an eminent domain taking by a housing authority c. 79, § 40, shall apply 'except that the security therein required shall be deposited with the mayor of the city * * * in which the property to be taken is situated.' Section 40 of c. 79 provides, 'Before a taking is made or injury inflicted by a private corporation for which damages may be recovered under this chapter, such corporation shall give to the board of officers by whom such damages are to be awarded security to their satisfaction for the payment of all damages and costs which may be awarded by them or by the court for the land or other property taken or injured; and if, upon petition of the owner and notice to the adverse party, any security taken appears to them to have become insufficient, they shall require the corporation to give further security to their satisfaction. If the corporation fails to comply with this section any person entitled to such damages may treat the taking of his property * * * as void.'

The judge ruled that the contract of financial assistance, as amended, executed by the State Housing Board and deposited with the mayor of Woburn satisfied the security requirements of § 40. The correctness of this ruling is brought here by the demandant's bill of exceptions. The demandant's position is in substance this. The contract for financial assistance was entered into pursuant to the provisions of § 26NN of c. 121. This section authorized the State Housing Board to do no more than to guarantee the 'notes and/or bonds of the housing authority issued to finance the...