Page v. O'toole
| Decision Date | 23 March 1887 |
| Citation | 10 N.E. 851,144 Mass. 303 |
| Parties | PAGE, Trustee v. O'TOOLE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C.W. Turner, for plaintiff.
It is well established that, in all cases of taking land by eminent domain, such title only is taken as is necessary for the accomplishment of the public object; and, if the language of the act admits of a construction which leaves a fee in the owner subject to the public easement, it will be so construed. Mills, Em.Dom. § 49. The right of eminent domain is "a power given to provide for an exigency, and is warranted only by the existence of such exigency." See Harback v. Boston, 10 Cush. 297. The principle was early applied in this state to the taking of land for highways. Com. v. Peters, 2 Mass. 127; Perley v Chandler, 6 Mass. 454; Stackpole v. Healy, 16 Mass. 34; Robbins v. Borman, 1 Pick. 122; Adams v. Emerson, 6 Pick. 57; Weston v. Foster, 7 Metc. 299. The act under which land was taken was St.1868, c. 223,§ 1. The word "title" does not necessarily or even usually mean a title in fee. As applied to real estate, its ordinary meaning is the means by which the owner of land hath the just possession of a property or estate. Co. Litt. 345; 2 Bl.Comm. 195; 1 Bouv.Law Dict. 596. Such property or estate may be an easement, or an estate for life or in fee. In all cases of taking land under the right of eminent domain, there must be some means provided by law by which the right or estate taken shall vest,--some method by which it may be known that something has been taken. The defendant will claim that this case is to be governed by Dingley v. Boston, 100 Mass. 554, in which it was held that similar language imported a title in fee-simple but an examination of that case will show that this construction was there based, not only upon the language used, but upon the purpose of the act. But the purpose of the act under discussion does not require any greater estate than an easement. The purpose might not last forever. There is nothing in the act indicating that the owner was to have as damages the whole value of the land taken, as was the case in Dingley v. Boston. Plaintiff therefore submits that the town of West Roxbury took an easement, and not a fee-simple. If the town of West Roxbury took only an easement, the city of Boston, as its successor, had no greater estate, and could not let the land to the defendant. And the erection of structures on said land by defendant, and the continued maintenance and use thereof, constitute trespass, and plaintiff may maintain an action against him therefor. Proprietors v. Nashua & L.R.R., 104 Mass. 9; Com. v. Peters, 2 Mass. 125; Perley v Chandler, 6 Mass. 454.
R.W. Nason, for defendant.
The power given to the city of Boston and the town of West Roxbury, by St.1868, c. 223, § 1, to "take or purchase land," is manifestly given to the city and town severally, not jointly, if we read only the first part of the section. And when, after going on to provide that "the city or town, as the case may be," shall file in the office of the registry of deeds a description of the land so taken, the section concludes, "and the title to all land so taken shall vest in said city or town, as ...
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