Radway v. Selectmen of Dennis

• Citation: 165 N.E. 410,266 Mass. 329
• Parties: RADWAY v. SELECTMEN OF DENNIS et al.
• Decision Date: 28 February 1929
• Court: United States State Supreme Judicial Court of Massachusetts

266 Mass. 329

165 N.E. 410

RADWAY

v.SELECTMEN OF DENNIS et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Feb. 28, 1929.

Appeal from Superior Court, Barnstable County; Broadhurst, Judge.

Bill in equity by Grace E. Radway against the Selectmen of Dennis and others. Decree for plaintiff, and defendants appeal. Affirmed.

W. A. Briggs, of Attleboro, for appellants.

J. W. Allen and E. H. Abbot, Jr., both of Boston, for appellee.

RUGG, C. J.

The main question for decision is whether land of the plaintiff has been taken by eminent domain for a way by the town of Dennis. The statutory provisions as to the taking of land by eminent domain for a way are in G. L. c. 79. So far as here material they are in section 3 in these words: ‘The board of officers by whom an order of taking has been adopted * * * shall within thirty days thereafter cause a copy thereof, signed by them or certified by their secretary or clerk, to be recorded in the registry of deeds of every county or district in which the property taken or any of it lies. * * *’ The copy of an order of taking in connection with the abolition of grade crossings under G. L. cc. 159, 160, 161, ‘may be filed and recorded without the payment of any fee therefor. Upon the recording of an order of taking under this section, title to * * * the property taken * * * shall vest in the body politic * * * on behalf of which the taking was made; and the right to damages for such taking shall thereupon vest in the persons entitled thereto; * * *’ and in section 4 in these words: ‘If land of a registered owner * * * is taken by eminent domain, the board of officers by whom the taking is made shall file for registration * * * a description of the registered land so taken. * * * A memorandum of the right or interest taken shall be made on each certificate of title by the assistant recorder. * * * All fees on account of any memorandum of registration or entry of new certificates shall be paid by the body politic * * * which takes the land.’

The pertinent facts are that, pursuant to authority legally conferred by the voters of the town and after all necessary precedent legal action had been taken, the selectmen, on March 27, 1923, adopted an order taking in fee, for the layout and construction of a town way, a parcel of land owned by the plaintiff. Her title to this land was registered under G. L. c. 185. A certified copy of the order of taking was deposited in the registry of deeds within thirty days after March 27, 1923, but the necessary recording fee was not paid until July 2, 1923. The assistant recorder of the land court certified on the order of taking that it was received for registration on July 2, 1923, and on the same day he indorsed on the original certificate of title a memorandum of the right or interest thus taken in the plaintiff's land by the town.

It is plain from this recital of facts that no copy of the order of taking was ‘recorded’ within thirty days after its adoption. This requirement of the statute at least implies that every obligation resting on public officers prerequisite to the act of recording must be fully performed. By G. L. c. 262, § 38, the fees of registers of deeds must be paid when the instrument is left for recording. The statutes make no exceptions in favor of municipal officers. They, as well as all others, must comply with the mandate of the statute as to payment of fees. Their omission to do so within the time required in the circumstances disclosed cannot be excused or condoned. Thorndike, Petitioner, 252 Mass. 154, 157, 147 N. E. 672, and cases there collected. The most that can be said of the act of the board of selectmen is that the copy of the order of taking was offered for filing within the thirty-day period. The register of deeds, who is also the assistant recorder of the land court, G. L. c. 185, § 10, even if he might on his own responsibility have recorded the copy, was not obliged to do so until the fee was paid to him. His record of the date of receipt for registration of the order of taking, and of indorsement of the memorandum of the right or interest in the land of the plaintiff taken by the town, was conclusive. Chapin v. Kingsbury, 138 Mass. 194, 196. There is a well-defined distinction between filing an instrument, Powers Regulator Co. v. Taylor, 225 Mass. 292, 298, 114 N. E. 356; Gorski's Case, 227 Mass. 456, 459, 460, 116 N. E. 811;Greenfield v. Burnham, 250 Mass. 203, 210, 145 N. E. 306, and offering it for record or causing it to be recorded, Hamilton v. Farrar, 131 Mass. 572;Harriman v. Woburn Electric Light Co., 163 Mass. 85, 87, 39 N. E. 1004.

The requirement that the copy of the taking be recorded is not a mere direction, it is the vital act upon which depends the transfer of title from the landowner to the municipality. It is the operative alienation of the land. Turner v. Gardner, 216 Mass. 65, 69, 103 N. E. 54, and cases there collected. It is the act which fixes the rights of the parties. As to the time when the right to damages accrues, see G. L. c. 79, §§ 3 and 6; Edmands v. Boston, 108 Mass. 535, 550, 551;Munroe v. Woburn, 220 Mass. 116, 120, 107 N. E. 413;Kidder Peabody Acceptance Corp. v. Old Colony Railroad, 256 Mass. 41, 44, 152 N. E. 313.

This is not a case where there was an unjustifiable refusal to record the instrument after the one seeking the record had done all that was required of him, Orne v. Barstow, 175 Mass. 193, 55 N. E. 896, but it is a case where the record was made as soon as there was compliance with conditions precedent.

The case at bar on this point in substance is governed by Watertown v. Dana, 255 Mass. 67, 150 N. E. 860, 44 A. L. R. 1374. In that judgment, after a review of the history of the statutes at present governing the exercise of the power of eminent domain, G. L. c. 79, it was held that ‘the failure of the selectmen to adopt the requisite order of taking within ten days subsequent to the vote of the town and to record such order of taking within thirty days thereafter, all as pointed out in G. L. c. 82, § 24, and c. 79, §§ 1 and 3,’ invalidated the attempted taking there under review. It there was pointed out that the present statutory provisions are different from those interpreted in Beckford v. Needham, 199 Mass. 369, 85 N. E. 473, and that that decision is not now controlling as to the provisions of G. L. c. 79. The effective act of taking under the statutes then in force was not, as now, the ‘recording of an order of taking.’ Where it is sought to take land by eminent domain, there must be strict compliance with the statutory authority and all precedent conditions must be performed before land can be taken for public uses from a private owner against his will. Lajoie v. Lowell, 214 Mass. 8, 100 N. E. 1070;Breckwood Real Estate Co. v. Springfield, 258 Mass. 111, 154 N. E. 552.

It follows that there was no taking of the land of the plaintiff and that the proceedings to...