206 Mass. 82 | Mass. | 1910
This is an action brought under the E. L. c. 181, to recover possession of real estate at the corner of Washington and Summer Streets in Boston. This property was taken by the Boston transit commission on September 12, 1907, under the St. 1902, c. 534, for the purposes set forth in the act, which is entitled “ An Act to provide for the construction of additional tunnels and subways in the city of Boston.” The principal question raised by the report is whether the taking was valid.
The form of the taking is in perfect compliance with the terms of the statute. It is contended by the defendant that the act is unconstitutional. In § 6 it authorizes the taking of lands in fee, and of “ easements, estates, and rights in land, including the right to go under the surface thereof or through or under buildings or parts of buildings thereon,” etc. The taking “ may be confined to a portion or section of such parcel fixed by horizontal planes of division below or above or at the surface of the soil, and in such case no taking need be made of upper or lower portions or sections, except of such easements therein, if any, as the commission may deem necessary.” In § 7 authority is given to sell or remove the buildings from any and all lands
The construction of tunnels and stations under ground, with the approaches thereto and all the necessary appointments thereof, called for uses of land in certain places, which involved many complications in reference to the effect upon land adjacent to that which would be occupied permanently by the tunnel and stations and approaches thereto, and upon buildings or horizontal planes of land above the portions permanently occupied. Risks of injury to buildings or foundations of buildings not within the limits of the tunnels or stations to be constructed would be involved in some places. Of course there would be a liability for damages, under § 8 of the statute, wherever property was taken or injured by the commission, under the authority of the act. If the construction of the tunnel, or of a station of the tunnel, would necessarily have a directly injurious effect upon land outside of the limits of the tunnel, so as to subject the city to a substantial claim for damages on that account, it might be reasonable and proper for the commission to take the land in fee and pay for it, and then, when the work was ended, to dispose of that part which was no longer needed.
The Legislature well might provide for a taking of land and a construction of the work with a reasonable regard to economy, and a taking in fee of adjacent land likely to be seriously injured in the progress of the work might be more economical than a taking only of that which would be needed permanently. The uncertainties as to the extent of injuries to the adjacent land from construction might cause serious embarrassment in the assessment of damages, and sometimes lead to large awards, founded on risks that might prove to be much less than was at first supposed.
The question whether the use for which land is taken under the right of eminent domain is a public use is a judicial question, and the determination of the Legislature upon it may be revised by the court. Talbot v. Hudson, 16 Gray, 417. Moore v. Sanford, 151 Mass. 285, 288. Lowell v. Boston, 111 Mass. 454. Opinion of the Justices, 204 Mass. 607, 616. But if the
The right of the Legislature to determine what land, or rights, or easements, in land, it was necessary or expedient to take for use in the construction or maintenance of a tunnel and its appointments, it could delegate to a tribunal representing the public interest in that particular. The act of the Boston transit commission, in the form of a taking in writing, duly recorded, in conformity with the statute, is to be treated as if it were a statute. Its exercise of delegated legislative authority and its final judgment in determining what property it was expedient to take to accomplish the strictly public purpose for which the taking was made are not subject to revision. Of course, if fihe instrument of taking, considered in all its parts, and applied to the property described in it, showed that the property was not taken for the purposes set forth in the statute, and that the portion of the writing averring such a taking was controlled by other parts
We come now to the defendant’s offer of proof. It is to be remembered that this is an offer of evidence to control the construction of a writing which stands in the placé of a legislative act. It is not competent to inquire into the individual opinion or motive of any member of the Boston transit commission. Said Mr. Justice Field in giving the opinion of the court in Soon Hing v. Crowley, 113 U. S. 703, 710: “ The rule is general with reference to the enactments of all legislative bodies that the courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the acts, or inferrible from their operation, considered with reference to the condition of the country and existing legislation.
. . . The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile.” In United States v. Trans-Missouri Freight Association, 166 U. S. 290, 318, it is said that “ there is, too, a general acquiescence in the doctrine that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body.” See also Browne v. Turner, 174 Mass. 150,159. While facts that appear in connection with the proceedings in the enactment of statutes may sometimes be shown for the purpose of illustrating the subject to which the statute applies, the expression of individual opinions, in debates- or otherwise, is never competent. Under this principle, most of what was offered was incompetent. “ The sense of the commission,” the belief of the commission, and the “ conclusion ” of the commission in reference to the taking, are to be determined .from their final act of taking. The offers, in these particulars, seem to be attempts to show the views and opinions of individual members of the commission, which could not be put in evidence. Other parts of the offer seem to rest upon the erroneous assumption that the commission could not take land, except that which would be needed for permanent use as a part of the tunnel or station, and especially that it could not consider what
If the original plan of the engineer contemplated a taking only of the part now in use, which includes a basement underneath the greater part of the building, that did not prevent a taking of the fee, if such a taking afterwards seemed to the commission reasonably necessary for the proper and economical accomplishment of the work. It was right for the commission to consider the cost of acquiring that which would be needed permanently, and it was right to take the building above the part which would be occupied permanently, if, in reference to the probable damages that would be awarded for injury to the building and for interference with the use of it, this seemed reasonably necessary to an economical management of the business in their charge.
So far as the facts offered in evidence tended to show that the commission was mistaken in its judgment as to what it was necessary and proper to take, they were incompetent, for upon that question its judgment was conclusive. None of the facts, if proved, would have controlled the official declaration of the commission that the taking was for the purposes set forth in the statute. They were not inconsistent with it. There was no error of law in the exclusion of the evidence.
We have considered the case without reference,, to whether this is a proper form of proceeding in which to raise such questions as the defendant has sought to raise, as to which we express no opinion.
The defendant also contends that, if the taking was valid, the plaintiff cannot enforce its rights in this form of action. One of the conditions under which this summary process may he maintained, as stated in the R. L. c. 181, § 1, is when “the lessee of land or tenements or a person holding under him holds possession without right after the determination of a lease by its own limitation or by notice to quit or otherwise.” In such a case “the person entitled to the land or tenements may recover possession thereof,” under this section. This case comes exactly within the terms of the statute. If there is a termination of the
The plaintiff is “the person entitled to the land or tenements,” within the language of the statute, and as such “ may recover possession thereof.” This ground of defense is not well taken.
Judgment on the verdict.
