Town of Needham v. Norfolk County Com'rs

• Decision Date: 02 May 1949
• Citation: 86 N.E.2d 63,324 Mass. 293
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: TOWN OF NEEDHAM & others v. COUNTY COMMISSIONERS OF NORFOLK.

324 Mass. 293

86 N.E.2d 63

TOWN OF NEEDHAM & others v. COUNTY COMMISSIONERS OF NORFOLK.

Supreme Judicial Court of Massachusetts, Suffolk.

May 2, 1949

December 7, 8 1948.

Present: QUA, C.

J., LUMMUS, RONAN SPALDING, & WILLIAMS, JJ.

Way, Public establishment, taking. Eminent Domain, Validity of taking Taking of property already in public use. Parks. Municipal Corporations, Parks. Certiorari. Practice, Civil, Appeal. No appeal lay to this court under Section 1D, inserted in G. L. (Ter. Ed.)

c. 213 by St.

1943, c. 374, Section 4, from an order for judgment in certiorari proceedings.

No appeal lay to this court under G. L. (Ter. Ed.) c. 231, Section 96, from an order for judgment in certiorari proceedings where the case was heard, not solely upon the return of the respondents, but also on pertinent and competent oral evidence bearing upon the jurisdiction of the respondents respecting action sought to be quashed: the order appealed from was not an "order decisive of the case founded upon matter of law apparent on the record."

It was unlawful for county commissioners to take for the purposes of a relocation of a highway in a town substantial portions of a park and of two commons, which, if not held by the town as parks under G. L. (Ter.

Ed.) c. 45, had been at least dedicated to the use of the public or appropriated to such use without interruption for a period of twenty years, where it appeared that approval of the taking by the board having control of public parks was not obtained, that the town did not give its consent, that no public notice was given stating the extent and limits of the portions proposed to be taken, and that therefore the consent of the town could not be presumed as provided in G. L. (Ter. Ed.) c. 79,

Section 5.

The quashing, upon certiorari, of a relocation by county commissioners of a highway in a town by reason of the unlawful inclusion in the lands taken therefor of substantial portions of a park and commons, was of the relocation as an entirety because it could not be determined whether the commissioners would have approved of the relocation without such lands or what alterations in the remainder of the relocation their omission would have made necessary.

PETITION, filed in the Superior Court on April 21, 1948, by the town of Needham for a writ of certiorari.

Twenty-four taxpayers and residents of the petitioner town were permitted to intervene as petitioners.

The case was heard by Good, J.

H. Guild, (A.

Lawson with him,) for the respondents.

H. W. Hardy, Town Counsel, for the town of Needham.

E. W. Hadley, (M.

W. Cohen with him,) for the interveners.

QUA, C.J. This petition for a writ of certiorari was brought by the town of Needham to quash an order of the county commissioners dated April 2, 1946, purporting to "relocate" Highland Avenue in said town, increasing its width by about twenty feet, awarding damages amounting in all to $19,119 to more than ninety abutters for land taken, and ordering that all the expense of the "relocation," including land damages, as well as expenses of construction, be paid by the town. Twenty-four abutters were allowed to intervene as petitioners.

In the Superior Court the judge made an order that judgment enter quashing the action of the commissioners.

The commissioners appealed from this order for judgment.

This case is not here under the form of appeal provided by G. L. (Ter. Ed.) c. 213, Section 1D, inserted by St. 1943, c. 374, Section 4. That section provides for an appeal from a "final judgment," with substantially the effect of an appeal from a final decree in equity, but it makes no provision for an appeal from an order for judgment. See Shemeth v. Selectmen of Holden, 317 Mass. 278 , 282; Reardon v. Director of Civil Service, 318 Mass. 173 . The only statute under which an appeal from an order for judgment could be entertained is the appeal provided for proceedings at law by G. L. (Ter. Ed.) c. 231, Section 96. This section permits appeal in three specified instances only, one of which is from "any order decisive of the case founded upon matter of law apparent on the record." When concurrent jurisdiction over certiorari, mandamus and some other matters was first conferred upon the Superior Court by St. 1939, c. 257, Section 1, inserting Sections 1A and 1B into c. 213 of the Tercentenary Edition of the General Laws, express provision was made in Section 1B for reports to this court, and doubtless cases could also come here on exceptions under the very broad provisions of G. L. (Ter. Ed.) c. 231, Section 113 (amended in respects not here material), but a question existed as to whether an appeal under c. 231, Section 96, was open in such cases. See discussion in Codman v. Assessors of Westwood, 309 Mass. 433 , 434-435. Subsequently, however, in a mandamus proceeding, this court entertained an appeal under Section 96 from an order sustaining a demurrer. Clement v. Selectmen of Westwood, 316 Mass. 481 . Such an order also constitutes one of the three instances in which an appeal can be had under Section 96. We therefore assume that a certiorari proceeding could come here under Section 96 on appeal from "any order decisive of the case founded upon matter of law apparent on the record." But the order from which appeal is here attempted is not such an order. In the Superior Court the case was not heard solely upon the return of the respondents. The judge heard oral evidence bearing upon the jurisdiction of the commissioners to take certain of the lands taken. That evidence was pertinent and competent. Marcus v. Street Commissioners of Boston, 252 Mass. 331 , 333. Morrison v. Selectmen of Weymouth, 279 Mass. 486. Morrissey v. State Ballot Law Commission, 312 Mass. 121 , 124-125. The order for judgment of the trial court may have been, and probably was, founded wholly or partly upon findings made upon that evidence. It therefore does not appear to have been an "order decisive of the case founded upon matter of law apparent on the record." Harrington v. Anderson, 316 Mass. 187 , 191. The appeal is not properly here.

Inasmuch, however as the same final result (quashing of the order of the county commissioners) would have been reached if the case had come here on appeal from a final judgment under G. L. (Ter. Ed.) c. 213, Section 1D, inserted by St. 1943, c. 374, Section 4, we think it proper to state briefly...