Wright v. Walcott

• Decision Date: 26 May 1921
• Citation: 238 Mass. 432,131 N.E. 291
• Parties: WRIGHT et al. v. WALCOTT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 432

131 N.E. 291

WRIGHT et al.

v.WALCOTT et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 26, 1921.

Case Reserved from Supreme Judicial Court, Middlesex County; Charles F. Jenney, Judge.

Suit by George G. Wright and others against Robert Walcott and others. Reserved by a single justice for determination by the full court on the bill, answer, and agreed statement of facts. Bill dismissed.

The suit was to enjoin the members of the Industrial Commission of the City of Cambridge appointed under Acts 1913, c. 393, and the acts in amendment thereof and addition thereto, from leasing or attempting to lease certain park lands for private business purposes, on the ground that if such statutes authorize such leases they are unconstitutional.

Francis J. Carney, of Boston, for plaintiffs.

Peter J. Nelligan, City Sol., of Boston, for respondents.

RUGG, C. J.

This is a petition by ten taxpayers under R. L. c. 25, § 100, now G. L. c. 40, § 53, to restrain conduct of the Industrial Commission of Cambridge alleged to commit that city to obligations unauthorized by law. The pertinent facts are that the city of Cambridge was authorized by St. 1892, c. 341, and St. 1893, c. 337, to acquire land for public parks. Under that power and pursuant to a general plan for the development of a parkway and riverside reservation along the Cambridge bank of the Charles River, the city took by eminent domain and purchase about 113.6 acres (exclusive of the land here in question) extending on the river front approximately four miles. That general plan has been carried out (except as to the land here in question) and stretches from the Cambridge Bridge, on or near the site of an earlier structure called the West Boston Bridge, to the Cambridge Hospital in the westerly part of the city, at an expense of about $2,000,000. The land in question, called ‘The Front,’ contains 349,828 square feet of land bounding easterly on the Charles River 1,759 feet, northerly on Lechmere canal, westerly on a street and southerly on land of private owners. It was taken by eminent domain in 1894 and the owner within a few days thereafter also made conveyance thereof to the city, which became vested with the title in fee. A sea wall has been built and the land has been filled to grade, each costing slightly in excess of $50,000, the total expense including original cost being nearly $150,000. The land has not been further worked for park purposes. It would cost now from $10,000 to $30,000 to adapt it for park uses, depending upon the extent of development. Since ‘The Front’ was acquired the Cambridge Bridge has been built at great expense, connecting Boston and Cambridge, having been opened for use in 1909. It is a substantial structure of fine architectural design. From this bridge on the Boston side of the Charles River, up stream for a considerable distance, there is an attractive river bank park under the jurisdiction of the Metropolitan Park Commission. ‘The Front’ and the present parkway system of Cambridge are separated by three lots of land, occupied by buildings, and utilized as a purely business and commercial district, and communication between the two is by an underpass under Cambridge Bridge and through a business street. Since 1894 ‘The Front’ has not been in fact devoted to uses of a public park, except that opposite it in the river in each year recently, from about June 30 to the first Monday in September, a floating bath house has been maintained, access to which is by crossing ‘The Front,’ and which has been used annually by at least ten thousand people. The neighborhood in its vicinity has been largely given over to business and commercial activities. By St. 1913, c. 393, as amended by Special St. 1917, c. 223, and Special St. 1919, c. 79, the city of Cambridge has been authorized by vote of its city council ‘to alter the use’ of ‘The Front,’ to ‘maintain public dock or wharf thereon’ and to ‘lease said land or any part of it for wharves, terminals and all other commercial purposes for periods not exceeding ninety-nine years.’ The city council has passed the requisite votes. The defendants as the authorized agents of the city have had tentative proposals concerning leases of the land in question. The petitioners contend that the legislative acts just cited authorizing the alteration in the use of the land and its lease for private business and commercial uses are unconstitutional.

It is to be observed that no one having a special or private stake in the matter is objecting. No one complains on the ground of having paid a betterment assessment for the laying out of this land as a park. The proceeding is wholly under the statute by those having a public interest as taxpayers.

There are certain fundamental principles too well settled to be open to question. Moneys raised by taxation and all public funds can be expended only for public purposes. Private property cannot be taken by eminent domain or by contract of purchase except for a public use. It cannot be so taken or purchased from one person or set of persons with the design of handing it over directly or indirectly to another person or set of persons for their private advantage. The taking of private property except for ends which are of a public nature, even though accompanied by full compensation to the owner is contrary to fundamental principles of American Jurisprudence and violative of the essential character of a free government. Legislation designed or framed to accomplish the ultimate object of placing property in the hands of one or more private persons, after it has been taken by the superior power of the government from another private person avowedly for a public use, is unconstitutional. Salisbury Land & Improvement Co. v. Commonwealth, 215 Mass. 371, 102 N. E. 619,46 L. R. A. (N. S.) 1196, and cases there reviewed and collected; Riverbank Improvement Co. v. Chadwick, 228 Mass. 242, 117 N. E. 244, L. R. A. 1918B, 55;Opinion of Justices, 237 Mass. 598, 131 N. E. 25, and cases there collected; Lynch v. Forbes, 161 Mass. 302, 309, 37 N. E. 437,42 Am. St. Rep. 402;Wheelock v. Lowell, 196 Mass. 220, 225, 81 N. E. 977,124 Am. St. Rep. 543,12 Ann. Cas. 1109;Madisonville Traction Co. v. St. Bernard Traction Co., 196 U. S. 239, 251, 25 Sup. Ct. 251, 49 L. Ed. 462;Hairston v. Danville & Western Railway, 208 U. S. 598, 606, 28 Sup. Ct. 331, 52 L. Ed. 637, 13 Ann. Cas. 1008.

The taking of land for a public park is for a public use. To that end title may be taken in fee. Land acquired by a city or town by eminent domain or through expenditure of public funds, held strictly for public uses as a park and not subject to the terms of any gift, devise, grant, bequest or other trust or condition, is under the control of the General Court. It may be transferred to some other agency of government or devoted to some other public use by legislative mandate. The power of the General Court in this regard is supreme over that of the city or town. When title in fee is acquired in the land by the municipality for such a public use, there is no right of reversion to the original owner. He has been divested of every vestige of title when he parted with the fee. Higginson v. Treasurer & School House Commissioners of Boston, 212 Mass. 583, 99 N. E. 523,42 L. R. A. (N. S.) 215;Stewart v. Kansas City, 239 U. S. 14, 16, 36 Sup. Ct. 15, 60 L. Ed. 120.

The question never has arisen for express judicial determination in this Commonwealth, whether land once taken in fee for a public use can be sold and devoted to private uses when through the lapse of time or by reason of changed conditions and under legislative authority it has been decided that such land is no longer needed for public uses.

Since 1901 there has been a general law authorizing the abandonment of lands, easements and other rights taken by cities and towns otherwise than by purchase, upon compliance with certain conditions set forth in the statute. G. L. c. 40, § 15. The counsel for defendants has cited numerous special statutes authorizing cities to sell certain lands acquired or held for park purposes. None of these acts have been attacked in this court.

The question has arisen in other jurisdictions, where it has been held that, when there is legislative determination or approval to that end, such conveyance may be made when by reason of altered conditions the land is no longer needed for the public use. Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234, 6 Am. Rep. 70;Reichling v. Covington Lumber Co., 57 Wash. 225, 106 Pac. 777,135 Am. St....