Wilson v. Massachusetts Inst. of Tech.

Decision Date06 September 1905
Citation188 Mass. 565,75 N.E. 128
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Cases Reserved from Supreme Judical Court, Suffolk County; Jas. M. Barker, Judge.

Two suits, one by Cecil P. Wilson, and the other by one Wells, against the Massachusetts Institute of Technology. Cases reserved for the full court. Decrees for plaintiffs.

Morton and Hammond, JJ., dissenting.

John C. Gray, Edwd. L. Rand, and Roland Gray, for plaintiffs.

Geo. Putnam and Wm. L. Putnam, for defendant.


These are two bills in equity reserved for the consideration of the full court upon the pleadings and agreed facts. They are brought by owners of two lots of land on Newbury street, in the city of Boston, facing the square on which the buildings of the defendant institute and those of the Society of Natural History now stand, for the purpose of having the defendant institute enjoined from covering with its buildings more than one-third of the land ‘granted’ to it by St. 1861, p. 492, c. 183, as it is authorized to do by St. 1903, p. 456, c. 438, ‘subject to the rights, if any, of other parties.’ The bills proceed on the ground that by the sale of these and other lots surrounding the square under this act (St. 1861, p. 492, c. 183), an equitable restriction was imposed upon this square for their benefit, which includes the right they now seek to enforce.

By St. 1861, p. 492, c. 183, §§ 1, 2, the defendant institute is incorporated. By section 3 it is provided that the square in question ‘shall be reserved from sale forever and kept as an open space or for the use of such educational institutions of science and art as are hereinafter provided for.’ By section 4 (page 493) it is provided that the defendant institute shall hold, occupy, and control the westerly two-thirds of said square, subject to the ‘stipulations' specified, and by section 5 it is provided that the Boston Society of Natural History ‘shall be entitled to hold, occupy and control’ the easterly one-third on certain provisions there specified. By section 6 it is provided that the rights and privileges given in the last two sections are granted subject to certain ‘further conditions' there specified. Then comes the section which is here relied on by the plaintiffs, to wit: ‘The above named societies shall not cover with their buildings more than one-third of the area granted to them respectively.’ By sections 8 and 9 (page 494) the commissioners on the Back Bay are ‘instructed to reserve from sale the lots fronting on said square on Boylston, Clarendon and Newbury streets, until said societies shall, by inclosure and improvements, put said square in a sightly and attractive condition,’ and that an appraisal should be made of all the surrounding lots (except those on Berkeley street which had been already sold) and of the square in question; and if the surrounding lands when sold do not equal the appraised value of the two (the surrounding lots and the square) the two societies shall pay the amount of the deficit to the commonwealth for the school fund, to which the proceeds of the sale of these lands had been appropriated by the Legislature.

St. 1861, p. 492, c. 183, was enacted on a petition asking for the incorporation of an institution to be entitled the ‘Massachusetts Institute of Technology,’ and that ‘a section of land on the Back Bay may be reserved and granted to the use of said institute on such terms and conditions as may be deemed most conducive to the objects of the institute and the industrial and educational interests of the commonwealth,’ and on a petition by the Boston Society of Natural History asking for a similar grant. These petitions were referred to the joint standing committee on education, who made a report set forth in the agreed facts hereinafter set forth in part in this opinion. This committee reported a bill, which is not made a part of this case, but ‘shortly afterwards St. 1861, p. 492, c. 183, was passed,’ on April 10, 1861. On September 5, 1861, the appraisal called for by section 9 was completed, and the land in the square and the land in the surrounding lots on Boylston, Newbury, and Clarendon streets was appraised at $1.05 a foot.

A word as to what the Back Bay lands were will explain the occasion of the ‘grant’ to these petitioners. What is now known as the Back Bay District of Boston was originally flats covered by the ebb and flow of the tide, and used for mill purposes. It became desirable to change the use of these flats from mill purposes to land purposes. The title to these flats was in the commonwealth and the companies which owned the right of flowage for mill purposes. Prior to 1857 the commonwealth had by an adjustment got title to all the land shown on the following plan, which was adopted by the Back Bay commissioners appointed under Resolve 1852, p. 299, c. 79, and annexed to their fifth annual report rendered in January, 1857. It had determined to fill and sell these lands, and had laid out the land for that purpose by the adoption of this plan. See Commonwealth v. Roxbury, 9 Gray, 451; Fifth Annual Report of the Commissioners on the Back Bay; Report of the Commissioners appointed under Resolve 1856, p. 284, c. 76, with accompanying documents, printed in Senate Doc. No. 17, for the year 1857; Resolve 1852, p. 299, c. 79; Resolve 1855, p. 964, c. 60; Resolve 1856, p. 284, c. 76; Resolve 1857, p. 688, c. 70; St. 1857, p. 514, c. 169; St. 1859, p. 314, c. 154; St. 1860, p. 156, c. 200, § 5. The commonwealth had thus come into an extensive territory, from the sale of which a large profit was expected to result, after the cost of filling had been met. In 1861, when the act in question was passed (St. 1861, p. 492, c. 183), these flats or lands were ‘being filled, but at that time, with other large tracts to the west and south, were almost entirely vacant, the residence portion of the city being east of Arlington street and the business portion still more to the east.’ The lots surrounding the square in question (46 in number) were sold at four different auction sales, severally held on September 29, 1863, May 19, 1864, October 26, 1865, and April 10, 1869. The lot now owned by the plaintiff Wilson was bought at the second, and the lot now owned by the plaintiff Wells at the third, of these sales. A plan annexed to the agreed facts sets forth the actual price received by the commonwealth from the sale of the 46 surrounding lots. It is stated by the plaintiffs, and not contradicted by the defendant, that this plan shows that these 46 surrounding lots were sold for $2.46 8/9 a foot, and that the commonwealth received from these sales $90,384.06, over and above the appraised value of the square here in question, plus the appraised value of the surrounding lots made under St. 1861, p. 494, c. 183, § 8. As both the plaintiffs on the one hand and the defendant on the other hand have sought support from the way these sales were conducted, a short statement of it is necessary:

The surrounding lots consisted of 22 on Boylston street, 22 on Newbury street, and 2 on Clarendon street. The lots fronting the square on Berkeley street had been sold before St. 1861, p. 492, c. 183, was enacted, as we have already said; and, as we have said, all that were sold after that act were sold at public auction. Those on Boylston street were sold on September 29, 1863. The 22 lots on Newbury street were offered for sale on May 19, 1864, and 15 of them were sold then. The remaining 7 were sold on October 26, 1865, and the 2 lots on Clarendon street were sold on April 10, 1869. In case of all 46 lots the purchaser took a bond for a deed, followed by a conveyance later-in one instance 28 years later. The explanation for this course of conducting the transaction is obvious. So long as the title to it stood in the commonwealth, a lot of land was not subject to taxation by the local authorities. The four auction sales were advertised. The advertisements of the sales at which the two lots now owned by the plaintiffs were bought ended with this statement: ‘Catalogues with plans showing the situation and area of the several lots to be sold, and the minimum price of each, together with form of deed to be given by the commissioners and full particulars in regard to the restrictions and stipulations to be incorporated therein, may be obtained’ at the office of the commissioners.

The catalogue in case of the first of these two auction sales (the second of the four) covered lots on Commonwealth avenue, as well as the 22 lots in question on Newbury street, and, in case of the second of these two sales (the third of the four), besides the seven lots here in question, other lots on Newbury street and lots on Commonwealth avenue and Beacon street. The plan referred to in the concluding paragraph of the advertisement was pasted inside the catalogue. It was the only statement contained in the catalogue of what was to be sold and of the upset prices fixed by the commissioners with the approval of the Governor. It was not otherwise referred to in the catalogue. A copy of the plan so referred to in the advertisement and pasted in the catalogue at the first of these two sales (the second of the four) shows this square laid out as provided in St. 1861, p. 492, c. 183. The plan referred to in the advertisements and pasted in the catalogue at the second of these sales (the third of the four) was the same as the one above set forth, with this difference: In the one used at the later sale the names of the purchasers of the several lots sold at the former sale were added. The plans used at the first and fourth sales were also the same, with similar differences as to the absence or presence of the names of purchasers of lots.

The form of deed referred to in the catalogues for the first three of the above four sales was a printed form adopted prior to St. 1861, p. 492, c. 183, and...

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