Walker v. City of Medford

• Citation: 172 N.E. 248,272 Mass. 161
• Parties: WALKER v. CITY OF MEDFORD.
• Decision Date: 02 July 1930
• Court: United States State Supreme Judicial Court of Massachusetts

272 Mass. 161

172 N.E. 248

WALKER

v.CITY OF MEDFORD.

Supreme Judicial Court of Massachusetts, Middlesex.

July 2, 1930.

Report from Superior Court, Middlesex County; P. M. Keating, Judge.

Petition by Henegar F. Walker, opposed by the City of Medford, for the assessment of damages for the taking of petitioner's land by the city for street widening. On report.

Petition dismissed.

J. H. Devine, of Boston, for petitioner.

J. N. Johnson, City Sol., of Medford, for respondent.

SANDERSON, J.

This is a petition filed in the Superior Court for the assessment of damages for the alleged taking of land of the petitioner. Upon the facts to which the parties agreed the trial judge subject to the plaintiff's exception found and ruled that the taking was invalid and reported the case to this court upon the following terms: ‘If the Supreme Judicial Court should decide that the taking was not valid, the petition is to be dismissed without costs; otherwise the action is to stand for trial.’ The land in dispute is on Main Street near the center of Medford. On October 11, 1927, the board of aldermen of the defendant city, being the appropriate body authorized by law to take land for highway purposes in its behalf, ordered that Main Street between designated points ‘be and the same hereby is widened and laid out and accepted as a public way of the City of Medford under the provisions of law authorizing the assessment of betterments,’ and further ordered that certain described parcels of land including that of the petitioner be taken for the purpose of widening, laying out and accepting Main Street. In the order the board assessed and awarded damages sustained by the persons named in the taking, ‘to each and to all, severally and collectively; nothing’; and it certified that it expected that the estates abutting on Main Street would receive benefit and advantage other than the general advantage to the community from the improvement and estimated the several amounts in which the estates would be assessed therefor. The order of taking was passed by a voice vote without any dissenting vote at a meeting of the board of aldermen, attended by seventeen members. It was approved by the mayor, and duly recorded as required by G. L. c. 79,§ 3. Prior to its adoption there was no vote, two-thirds or otherwise, passed by the board of aldermen specifically authorizing the taking or appropriating money for it, although certain general appropriations for streets were made.

With certain exceptions not material to this case the government of the city of Medford and the general management and control of all its fiscal, prudential and municipal affairs are vested in a single office of the mayor and a single legislative board called the board of aldermen, composed of twentyone members. St. 1903, c. 345, §§ 2, 8. Except as otherwise provided in the chapter, this board is given the legislative powers of towns and also all the powers and authority given to city councils and boards of aldermen under the general laws of the Commonwealth, and all the powers other than executive given to selectmen of towns. St. 1903, c. 345, § 22. G. L. c. 40, § 14, as amended by St. 1921, c. 486, § 7, St. 1923, c. 266, and St. 1925, c. 272, provides in part as follows: ‘The aldermen of any city, except Boston * * * may purchase, or take by eminent domain under chapter seventy-nine, for any municipal purpose any land, easement or right therein within the town not already appropriated to public use, including an easement in land adjoining the location of a public way consisting of a right to have the land of the location protected by having the surface of such adjoining land slope from the boundary of the location; but no land, easement or right therein shall be taken or purchased under this section unless the taking or purchase thereof has previously been authorized by the city council * * * nor until an appropriation of money, to be...