154 Mass. 323 | Mass. | 1891
A perusal of the voluminous evidence, aided by the full briefs of counsel, shows to our satisfaction that there was an intention on the part of the owners of the parcels of land called Ocean Park, Hartford Park, and Waban Park to dedicate them to the use of the public as parks, and that the same were used by the public enough to show an acceptance thereof prior to the year 1880.
It will not be useful to state in much detail the evidence which leads to these results, or to discuss the particulars in which witnesses disagree or contradict each other. The general features, however, are as follows. In 1866, six persons united in a plan for making a place of summer resort at Oak Bluffs in Edgar-town. One of them already owned a large lot of vacant land which was deemed suitable for the purpose. Each of the five others purchased an undivided sixth part thereof. A professional landscape gardener, Mr. Copeland, was employed to lay out the grounds in such a manner as would be likely to attract people who should come there only for the summer, and to induce them to buy lots, build cottages, and establish a village. In 1867 a deed of the premises was made to two of their number, as trustees for the benefit of the six owners; and in 1868 an act of incorporation was obtained, and the land was conveyed to the corporation. The sole purpose of the corporation was the holding, improving, and disposing of the land and a wharf then held by the two trustees, with power also to purchase, hold, improve, and dispose of other adjacent lands. St. 1868, c. 60. At the outset the original six owners constituted all of the stockholders of the corporation, and they all became directors. According to the by-laws, four directors constituted a quorum, with full power
The testimony makes it very plain that the establishment of open spaces or parks was deemed an important feature of the scheme for selling lots. At the outset it was a matter of discus
The defendant concedes that some of the original owners and stockholders in the corporation gave such assurances to purchasers, and in various ways gave wide publicity to the plan of having these places kept open as public parks; but he contends that two of them did not assent to this course. One of these, Mr. Darrow, died in 1871; the other was a witness in the case. As to both of these the evidence is satisfactory to show that they assented to the plan in manner and form as it was put forth to the public. Mr. Darrow at the outset thought too much land was devoted to the parks, but after discussion acquiesced in the opinion of the majority. The other one, while in his direct testimony he denied that he ever assented to the plan, or that there was ever any authority to bind the owners of the land or the corporation by a dedication of the parks to the public, yet admitted that he knew of the existence of the plans, and of their being on record, that he had seen them at many places, and that he gave away some of them himself; probably some of each. The defendant also suggests that one Worth was interested, and never assented to the dedication. Worth held a bond from Bradley, one of the original owners and stockholders, for one half of Bradley’s share of the proceeds of sales, but his title was not such as to
Without dwelling upon various other particulars of the evidence which tend in the same direction, we cannot doubt that it was a part of the scheme of the enterprise or speculation that the public should understand that these spaces should be left open for public use, and that no right was reserved to sell them for building lots; that the corporation held out to the public this assurance, and at the time fully and fairly intended to give up this right; and that the two persons upon whose supposed dissent the defendant relies did not in fact dissent at the time. If they had done so, their dissent would be overborne by the action of the other four; but it seems to us more reasonable and probable to suppose that at the time they acquiesced, if they did not fully concur, in the views of the majority.
It is not necessary to go nicely into the question at what time the intention to devote these open spaces to the public became fully formed. There certainly was an intention that some spaces should be left open at an early day. Before the corporation was created, a plan showing such spaces was prepared and put on record. Some changes were afterwards made in the boundaries. The land containing Waban Park was subsequently purchased. The limits of these three several open spaces were finally settled after the corporation was formed. For a time there was a somewhat fluctuating intention, so far as limits and boundaries were concerned. But the limits as shown on the last two plans may be taken as representing the final conclusion of the corporation as to the limits of the spaces that were to be left open.
The fact that not much was done to adorn these spaces, and that the corporation itself did whatever was done in this respect, and to some extent assumed to exercise a certain control over the land, is not of much weight in opposition to the conclusion to which we have come. The chief element of a public park in such a place, at least till the village is well settled, is' to have the land kept open. The adornment would naturally come later, if at all. The corporation did a little towards improving and caring for these open spaces. It had some interest in doing so. Ordinarily, when parks are established for public use, the munici
On the whole, we think the evidence is sufficient to show an offer to the public of the spaces shown on the last two plans as Ocean Park, Hartford Park, and Waban Park. In Attorney Greneral v. Whitney, 137 Mass. 450, where a majority of the court thought there was not sufficient evidence of such an intention, the evidence of dedication was far less strong.
The acceptance of such a dedication at common law need not appear of record, and need not be by the town. The acceptance is by the public at large, and the principal thing to show it is use by the public. Washburn on Easements, 128, 139, 140. There is no need of a formal grantee. The fee remains in the original owner. Cincinnati v. White, 6 Pet. 431. No assent of the town is necessary, because no burden is put upon the town, as in the case of a way. The improvements upon a park thus dedicated are left to be made by those who are interested. The town may take it up, or it may be left to individuals. If in a seaside summer resort no improvements at all are made, there will still be some benefit from having a space left for air, and for an open, unobstructed prospect. Whether the easement of a public park could be accepted merely by enjoying an unobstructed view over it of the ocean, need not be considered. Various other acts of use of all the parks are shown, sufficient to show an acceptance of them by the public. Such acceptance need not be very specific.
The defendant contends that such acceptance must have been by the town of Edgartown originally, or by the town of Cottage City afterwards. The chief argument in support of this view is, that there must be somebody who can be held responsible for the abatement of a nuisance, if one should exist upon the property; and that if the dedication is not to the town, and accepted by the town, there is virtually no owner of the property. This argument is of force, but the technical answer is that the fee remains
The defendant further contends that he was a bona fide purchaser for value, without notice, and that his title should therefore be protected. This argument, however, cannot prevail, for two reasons. In the first place, purchasers of real estate must take notice of such a fact as a dedication to the public, in like manner as they must take notice of a title gained by adverse possession. There are various infirmities to which titles apparently good on the records are exposed. Gillespie v. Rogers, 146 Mass. 610, and cases there cited. If a dedication has become complete, the original owner cannot afterwards resume control, or convey the land free from the easement of the public, any more than if the easement had been gained by prescription. Washburn on Easements, 139. Goddard on Easements, 181. 2 Greenl. Ev. § 662. Trustees of Methodist Episcopal Church v. Hoboken, 4 Vroom, 13.
Moreover, in the present case, the defendant was fully put upon inquiry as to the facts, and made a laborious investigation of them, but came to a conclusion, either upon the law or upon the facts, different from that which we have reached. Under such circumstances it cannot be held that he was a purchaser without notice. The price which he paid was far less than the value of the land, provided the title was clear, and whatever may have been the defendant’s opinion as to the validity of his title, he certainly had reason to know that it was liable to be questioned.
Decree for the plaintiff.