Tate v. City of Malden

• Decision Date: 27 July 1956
• Citation: 136 N.E.2d 188,334 Mass. 507
• Parties: Frank E. B. TATE et al. v. CITY OF MALDEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 188

136 N.E.2d 188

334 Mass. 507

Frank E. B. TATE et al. v. CITY OF MALDEN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 6, 1956.

Decided July 27, 1956.

Bernard Kaplan, City Solicitor, Boston, for defendants.

Gerald May, Boston (Walter L. Landergan Jr., Boston, with him) for plaintiff.

Before QUA, C. J., and RONAN, WILKINS, COUNIHAN and WHITTEMORE, JJ.

WHITTEMORE, Justice.

The defendants appeal from a final decree adjudging to be null and void the taking by eminent domain by the city of Maldern of five parcels of land on Middlesex Street, owned by the plaintiffs at the time of the taking, for the purpose of constructing a public parking place.

The decree was erroneous. We hold, contrary to the ruling of the judge in the Superior Court, that the special statute under which the city acted, St.1954, c. 600, did authorize the taking of the plaintiff' land, even though it was at the time being used for public parking.

The statute provides in part, 'For the purpose of constructing a public parking space the city of Malden may, for such purpose, acquire by purchase or otherwise, or take by eminent domain * * * land and buildings located on Garnet and Waverly streets or either of them or any other streets in said city as the city council may determine.'

This is sufficient authorization to take land and buildings on any street in the city. Opinion of the Justices, 330 Mass. 713, 718, 113 N.E.2d 452.

The use of the land by the private owners for a public parking lot did not cause the land already to be devoted to public uses so that there was no necessity of the exercise of the extraordinary power of eminent domain. Art. 10 of the Declaration of Rights. Among the several significant differences is the fact that the private owners at any moment could decide to sell the land for other purposes or to use it for other purposes. Cary Library v. Bliss, 151 Mass. 364, 25 N.E. 92, 7 L.R.A. 765, on which the plaintiffs rely, is not in point. There the library provided by gift of Maria Cary was by the trust committed to the public use. It was as this court said, 151 Mass. at page 379, 25 N.E. at page 95, held 'for a public use.' See Long Island Water-Supply Co. v. City of Brooklyn, 166 U.S. 685, 689, 17 S.Ct. 718, 41 L.Ed. 1165; City of Trenton v. Lenzner, 16 N.J. 465, 470, 109 A.2d 409, certiorari denied sub nomine Lenzner v. City of Trenton, 348 U.S. 972, 75 S.Ct. 534, 99 L.Ed. 757.

The provision of off-street parking spaces is a public purpose for which land may be taken under the statute. Denihan Enterprises, Inc., v. O'Dwyer, 302 N.Y. 451, 99 N.E.2d 235; City of Trenton v. Lenzner, 16 N.J. 465, 109 A.2d 409; Poole v. City of Kankakee, 406 Ill. 521, 94 N.E.2d 416; Phillips v. Officials of City of Valparaiso, 233 Ind. 414, 120 N.E.2d 398. Such provision is an essential concomitant of the provision of highways for the use of automobiles. The parking lot is a necessary public utility...