Norcross v. City of Cambridge

• Decision Date: 04 September 1896
• Citation: Norcross v. City of Cambridge, 166 Mass. 508, 44 N.E. 615 (Mass. 1896)
• Parties: NORCROSS et al. v. CITY OF CAMBRIDGE et al.
• Court: Supreme Judicial Court of Massachusetts

166 Mass. 508

44 N.E. 615

NORCROSS et al. v. CITY OF CAMBRIDGE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

September 4, 1896

COUNSEL

Felix Rackemann and Francis V. Balch, for plaintiffs.

Robert M. Morse, Gilbert A.A. Pevey and Charles E. Hellier, for defendants.

OPINION

MORTON J.

The objection that the petition should be dismissed because of the pendency of the proceedings in the superior court has not been pressed, and is disposed of by the case of Moore v Sanford, 151 Mass. 285, 24 N.E. 323.

The petitioners contend that the statute under which their land was taken is unconstitutional, because--First, it does not provide compensation by way of interest from the date of the paper taking to the date of the actual entry and taking of possession; and, secondly, because the rate of interest is fixed at 4 per cent., instead of 6. See Pub.St. c. 77, § 3, and Id. c. 171, § 8. In other words, the petitioners contend that they have a constitutional right to interest at 6 per cent from the time of the formal taking. The case of Edmands v. City of Boston, 108 Mass. 535, seems to us decisive of this. Aside from that, we should hesitate to say that a statute which permits the damages to be assessed as of the date of the formal taking, but postpones interest till possession is actually taken, does not provide the "reasonable compensation" which the constitution requires. ^[1] The legislature may have considered as was said in Edmands v. City of Boston, supra, and as has been thought elsewhere, that the use of the land would compensate the owner for the delay in payment. Hamersley v. Mayor, etc., 56 N.Y. 533; Donnelly v. City of Brooklyn, 121 N.Y. 9, 24 N.E. 17; Fiske v. Chesterfield, 14 N.H. 240; Phillips v. Commissioners, 119 Ill. 626, 10 N.E. 230; City of Chicago v. Palmer, 93 Ill. 125; In re Second St., 66 Pa.St. 132. If it did not, and he was put to trouble and expense by reason of the proceedings prior to the entry, it might be competent for the jury, as was suggested in Edmands v. City of Boston, supra, and as, by statute, may be done in the case of highways (Pub.St. c. 49, § 14), to include the loss thus occasioned as an element of damage. The rule has been generally laid down in this state that the landowner is entitled to interest from the time of the taking, because compensation has generally been regarded as due and payable then. We think, however, that the rule cannot be held so far to express a matter of common right that a departure from it by the legislature in a statute authorizing a taking by eminent domain would render the statute in which it occurred wholly or partly unconstitutional. In the highway act it is expressly provided that interest shall be payable only from the date of actual entry. Pub.St. c. 49, § 14. The constitutionality of that provision, so far as we are aware, has never been questioned. There can be no doubt, we think, that the legislature would have the right to enact that, as between vendor and purchaser, the latter, in the absence of any contract to that effect, should not be liable for interest until he entered into possession, or took, or had the right to take, the rents and profits. It has been held that a taking by eminent domain is in the nature of a purchase by the public. Parks v. City of Boston, 15 Pick. 198. If it is, then it is obvious that the involuntary character of the transaction quoad the landowner cannot take away the right of the legislature to deal with the question of interest, as in the case of other sales. In re Pigott, 18 Ch.Div. 146. Further, if we assume that the damages for taking are to be regarded as a debt (see Frazer v. Carpet Co., 141 Mass. 126, 4 N.E. 620), the right to interest as compensation or damages for the detention of a debt is not an absolute right (1 Suth.Dam. [ 2d Ed.] 321). At common law, interest was not only not allowed, but was, it seems, unlawful. Earl of Chesterfield v. Jansen, 1 Wils. 290; Lowe v. Waller, 2 Doug. 736, 740; Robinson v. Bland, 2 Burrows, 1077, 1086; Houghton v. Page, 2 N.H. 42; 1 Suth.Dam. § 301; Sedg.Dam. (5th Ed.) 260; 7 Bac.Abr. *188. The incumbrance caused by the formal taking is very much like that caused by a contemplated taking. There is a possibility in either case that the object in view will not be carried out,--a little more remote, it is true, in the former case than in the latter, but with the advantage to the landowner in the former case that, whether it...