Town of Bedford v. United States, 2137.

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: BINGHAM, JOHNSON, and ANDERSON, Circuit
• Citation: Town of Bedford v. United States, 23 F.2d 453, 56 A.L.R. 360 (1st Cir. 1927)
• Decision Date: 27 December 1927
• Docket Number: No. 2137.,2137.
• Parties: TOWN OF BEDFORD v. UNITED STATES.

23 F.2d 453 (1927)

TOWN OF BEDFORD v. UNITED STATES.

No. 2137.

Circuit Court of Appeals, First Circuit.

December 27, 1927.

Elihu G. Loomis, of Boston, Mass., for plaintiff in error.

Telesphore Leboeuf, Sp. Asst. U. S. Atty., of Webster, Mass. (Frederick H. Tarr, U. S. Atty., of Gloucester, Mass., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Proceeding under Stat. 1888, c. 728 (25 Stat. p. 357 40 USCA §§ 257, 258; Comp. St. §§ 6909, 6910), the United States took, as of November 10, 1926, by eminent domain, for a Veterans' Hospital, a tract of land in the town of Bedford containing about 400 acres. The taking covered "all rights of every name, nature, and description in and to that portion of Springs road so called, as shown" on a plan referred to. Springs road was an old road, used from time immemorial, and maintained at the expense of the town. The taking cuts out about a half mile of the road, but the severance will render other portions unavailable and require new roads to connect the termini. The facts concerning the extent of the damage need not now be stated; for it is stipulated that, if the town is entitled to recover, the amount shall be $10,000.

The court below ruled against the town, without opinion. The single question here is whether the taking by the United States, by eminent domain, of a way located in the town, entitles the town to compensation.

The United States attorney undertakes to support this ruling by urging that "the United States is not liable unless the commonwealth would have been liable if it had taken it for its own use." Otherwise stated, the sole reliance of the government is on the Massachusetts rule that a taking by the commonwealth for one public use grounds no right to compensation in a town which has previously devoted the land taken to another public use. But the rule is not applicable.

In Town of Nahant v. United States, 136 F. 273, 275, 69 L. R. A. 723, this court expressly held that under this statute of 1888, supra, the proceeding for condemnation is not so far authorized by the commonwealth as to entitle the United States to stand upon the Massachusetts law as to the rule of damages, where the property taken for a second and different public use is connected with a prior public use authorized by the state. The same case affirming the same doctrine was again before this court in United States v. Town of Nahant, 153 F. 520.

This taking in Bedford was by virtue of the authority of the United States, and not under authority delegated to the United States by the commonwealth of Massachusetts. See Chappell v. United States, 160 U. S. 499, 510, 16 S. Ct. 397, 40 L. Ed. 510; United States v. Gettysburg Electric R. Co., 160 U. S. 668, 679, 16 S. Ct. 427, 40 L. Ed. 576; Kohl v. United States, 91 U. S. 367, 371, 23 L. Ed. 449.

The present question, then, is not whether the town could have recovered, if the taking had been by the commonwealth for another public use, but whether, when the federal government, as an act of paramount sovereignty, has taken this land and the rights of the town in this highway, the town is entitled to be made good for an actual loss of $10,000 thus caused.

The rulings relied upon concerning takings where the authority is delegated by the commonwealth are not in point. In re Certain Land in Lawrence (D. C.) 119 F. 453, 454; Burt v. Merchants' Ins. Co., 106 Mass. 356, 8 Am. Rep. 339, dealing with land for the Boston post office. Statutes cited in Gen. Laws Mass. vol. 1, p. 5.

While it is settled that in Massachusetts, ordinarily, towns do not own the fee in town ways (Inhabitants of Millbury v. Blackstone Canal Co., 8 Pick. 473), and that the easement is not technically vested in the town, but belongs to the general public (Inhabitants of Andover v. Sutton, 12 Metc. 182, 188), it is also settled that the town has a qualified property or interest in its highways (McHugh v. City of Boston, 173 Mass. 408, 53 N. E. 905). Towns may recover for the obstruction or destruction of town ways. See Town of Troy v. Cheshire R. Co., 23 N. H. 83, 55 Am. Dec. 177, in which is a learned and instructive opinion by Judge Bell as to the rights and obligations of towns concerning highways. Cf. Gilman v. Town of Laconia, 55 N. H. 130, 131, 20 Am. Rep. 175; Town of Monroe v. Connecticut River Lumber Co., 68 N. H. 89, 92, 39 A. 1019. Towns are permitted to recover for damages done town ways, for the simple reason that thus additional burdens are imposed upon the taxpayers required by law to maintain such ways. Cf. Gen. Laws Mass. c. 84, §§ 1, 15, 22. Towns cannot discontinue highways without becoming liable for damages to landowners injured thereby. Gen. Laws, c. 79, § 9 et seq.

For present purposes, a town may be regarded as a group of taxpayers, charged, inter alia, with the burden of building and maintaining such highways as common convenience and necessity require. Any act that increases those burdens takes additional money from that group of taxpayers. A highway once built exonerates, pro tanto, that group; taken or otherwise destroyed, a new burden is imposed. To take the furnished means of meeting a liability imposed by law has the same effect as taking property technically vested; loss accrues. Bedford's right in Springs road was as real a property right as a leasehold of the same land, or as an abutting owner's right of access to the street. Rigney v. City of Chicago, 102 Ill. 64; Hart v. Buckner (C. C. A.) 54 F. 925, 930; Old Colony & F. R. R. Co. v. Inhabitants of Plymouth County, 14 Gray (Mass.) 155.

Doubtless cases may be found in which recovery has been refused because of an erroneous conception of the real meaning of the word "property" as used in the Constitution and in eminent domain cases. 2 Lewis on Eminent Domain (3d Ed.) §§ 62-69; 3 Dillon's Munic. Corporations (5th Ed.) §§ 1015-1018. Perhaps the best discussions of this point are found in Eaton v. Boston, C. & M. R. R., 51 N. H. 504, 12 Am. Rep. 147, and Thompson v. Androscoggin River Imp. Co., 54 N. H. 545.

In the Eaton Case, Judge Jeremiah Smith pointed out (page 511) that the constitutional prohibition against taking private property without compensation has received in some quarters a construction which renders it of comparatively little worth, because grounded on a misconception of the meaning of the word property. He observes that in strict legal sense even land is not property, but merely the subject of property. The learned judge then discusses, with great acuteness and copious citation of authorities, the real meaning of the word "property."

In the Thompson Case is an illuminating discussion by Judge Doe of the same general problem. See page 551 et seq., in which he points out that "property in land must be considered, for many purposes, not as an absolute, unrestricted dominion, but as an aggregation of qualified privileges, the limits of which are prescribed by the equality of rights, and the correlation of rights and obligations necessary for the highest enjoyment of land by the entire community of proprietors." Among other illustrations, he notes that a refusal to pay a debt is an injury to the property of the creditor (25 N. H. 540); that "a patent right, a copyright, a right of action, an easement, an incorporeal hereditament, may be property as valuable as a granite quarry." Property is taken when any one of these proprietary rights is taken or destroyed. Arimond v. Green Bay & M. Canal Co., 31 Wis. 316, 335. Applying the reasoning of these cases to the problem before us, it is clear that the town of Bedford had a property right in this town way. The road was, as already noted, a furnished means for the performance of a legal duty. While the town had not the right of exclusive user, it did have a right to exclude all not using the highway in a manner consistent with the equal rights of other users, who in turn had rights that the town was bound to maintain.

But it is not — and under the stipulation herein cannot — be contended that Bedford has not suffered a damage of $10,000 by the government's taking of this way. The case, therefore, falls plainly under the protection of the Fifth Amendment. The doctrine laid down in Monongahela Nav. Co. v. United States, 148 U. S. 312, 325, 326, 13 S. Ct. 622, 37 L. Ed. 463, is fully applicable. In that case, dealing with the attempt of Congress to take the franchise of the Monongahela Company without compensation, the court, by Mr. Justice Brewer, held the attempt must fail, because under the Fifth Amendment no private property could be taken for public use without just compensation (page 325 13 S. Ct. 626): "There can * * * be no doubt that the compensation must be a full and perfect equivalent for the property taken."

In United States v. Gettysburg Electric R. Co., 160 U. S. 668, 685, 16 S. Ct. 427, 431 (40 L. Ed. 576), the court held that the United States had power to take by eminent domain the Gettysburg battlefield, including the location of a railway, saying: "The power of Congress to take land devoted to one public use, for another and a different public use, upon making just compensation, cannot be disputed." Manifestly, the "just compensation" must go to or for the benefit of the persons damaged by the taking — in this case the taxpayers of Bedford. See, also, St. Louis v. Western U. Teleg. Co., 148 U. S. 92, 13 S. Ct. 485, 37 L. Ed. 380. Atlantic & P. Teleg. Co. v. Philadelphia, 190 U. S. 160, 23 S. Ct. 817, 47 L. Ed. 995. We can find not even a dictum in the decisions of the Supreme Court to support any other doctrine.

Parenthetically, question might be made of the power of the federal officials acting in this taking to take such a public facility as this town way without express authority from either Congress or the commonwealth of Massachusetts. See the observations of Judge Putnam in the New Castle Case (C. C.) 165 F. 783, 788, a taking under...