Burt v. Merchants' Insurance, 106 Mass. 356

Burt v. Merchants' Insurance

106 Mass. 356 | Mass. | 1871

Chapman, C. J.

This process is brought to obtain an appraisement of a tract of the land described in the petition, alleging that the petitioner, who is the agent of the United States, and the respondents, who are owners of the land, cannot agree upon the price to be paid for it. It is contended that the process cannot be maintained unless there has been an agreement of the petitioner that he will buy, and of the respondents that they will *362sell, leaving merely the question what is to be .paid unsettled. and that, without such agreement, neither the Constitution, nor the language of the statute, authorizes the United States to take the land upon the appraisement of a jury.

It is obvious that, if the statute does not require an agreement of any kind on the part of the landowner, it is intended as an exercise of the right of eminent domain. The respondents deny the power of the legislature to delegate the exercise of this right to an agent of the United States, for the purpose of obtaining a site for a post-office.

It cannot be held that the legislature must exercise this right by its own agents, appointed exclusively for that purpose. There is no constitutional provision on the subject. Article 10 merely provides that, whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor. The usual method of making the appropriation is to authorize some corporation to take the property in the manner prescribed by a statute. In this manner, the right of eminent domain is exercised by railroad, turnpike, canal and aqueduct corporations; and the property passes, not to the state, but to them. In the same way, land is taken by counties for court-houses, and by towns for schoolhouses. And from a very early period the legislature have been in the habit of consenting that the United States may take land for various public purposes.

Some of these acts contain merely a consent to a purchase, as St. 1855, c. 127, relating to the custom-house in Barnstable, and St. 1858, o. 157, relating to land for the United States courthouse in Boston. Where the parties have already agreed, there is no need of any further provision. But many of them are almost precisely like the act in this case. They first consent to a purchase, and then provide that, if the parties cannot agree in a sale or a purchase, the land may be appraised by a jury upon petition, and on payment or tender of the amount of the appraisement, with costs, the land shall vest in the United States.

Of this character was St. 1798, c. 18, consenting to the pur. chase of land for the Springfield armory; also St. 1800, o. 26, *363consenting to the purchase of land in Charlestown for the purpose of a navy or dock-yard. Under this last act, the agent of the United States took the land by procuring the appraisement of a jury. See Harris v. Elliott, 10 Pet. 25. So that the right of eminent domain was actually exercised under the act, and the supreme court of the United States assume the legality of the act, and say that the title vested in the United States by virtue of the act. In 1790, e. 4, a similar act was passed in respect to certain light-houses; in 1798, in respect to Castle Island; in 1816, c. 15, in respect to land in Watertown for an ordnance depot; in 1835, a. 98, in respect to a light-house in Marblehead. These, and several other acts not cited, show: that the legislature have habitually authorized the United States to acquire lands by an exercise of the right of eminent domain. It could not be ascertained without investigation, in which of the cases referred to they have been obliged to resort to the appraisement of a jury. But it is now too late to question the validity of such acts, even if there could have been any reasonable doubt about it originally. No intelligent person can suppose that the state is not interested in the establishment of light-houses, navy-yards and arsenals within its limits, quite as much as the United 'States. And as to a post-office in the city of Boston, the people of that city are peculiarly interested in it. The whole Commonwealth is also largely interested in it; and it is established by the United States for a purpose exclusively public. It is difficult to conceive of a more proper case for the exercise of the rights of eminent domain.

Adjudications have been made upon this subject in some of the states. In Reddall v. Bryan, 14 Maryl. 444, it was held that under this right the legislature of that state might authorize the taking of water to supply the city of Washington. In Gilmer v. Lime Point, 18 Cal. 229, an act of the legislature of California authorized the agents of the United States to take certain lands for fortifidations, and if the owners were unknown, or were incapable of conveying, or refused to convey, the agent of the United States might apply for an appraisement by a jury, and upon tender or payment of the amount of the verdict and costs, the sheriff of the county might convey the land. The validity *364of this statute was contested, the case was discussed very elaborately, and the court held that it was a valid exercise of the right of eminent domain.

We cannot doubt the validity of the act in question in this case. But it is further contended that the terms of the act itself do not authorize this application for an appraisement by a jury, unless the respondents shall first have given their consent to a sale.

It is obvious that such a construction of the second section would defeat its own end; for, if the consent of the owner must first be. obtained, he will never give it until the buyer agrees to pay the price that he is willing to take. He may either fix it himself, or agree that some one else shall fix it. But the provision as to the right to apply for a jury is nugatory. We cannot suppose that the legislature intended to deal thus with the United States. It is to be assumed that they used the word “ purchase ” in its legal signification. It includes every lawful method of coming to an estate by the act of a party, as opposed to the act of law. Thus it includes titles obtained by sale of property on execution by a sheriff, or by levy, in which cases there is no consent of the debtor, nor any conveyance- from him. And it includes titles obtained- by exercise of the right of eminent domain If a statute authorizes the appraisement by a jury, and vests the title upon payment or tender of the amount of the verdict, with costs, the property is held under a statute conveyance, and the title is, in legal phrase, by purchase.

As the parties in this case could not agree upon the price to be paid, the contingency has arisen which authorizes the court to proceed upon the petition, and procure an appraisement by a jury. It could not be necessary to obtain a consent to the sale, which of necessity includes some agreement either fixing the price definitely or providing some method by which it shall be fixed. Nor is the statute to be construed as subjecting the United States to the option of the owners of the property in respect to an important public interest. The petitioner is entitled to proceed and obtain an appraisement under the statute, and upon a compliance with the conditions which it prescribes the title will vest in the United States by force of the statute.

Exceptions sustained.