127 Mass. 1 | Mass. | 1879
This is an indictment under the Gen. Sts. c. 161, § 82, for cutting down an elm tree standing on land of the inhabitants of Lancaster.
The principal question to be decided arises upon the following facts : In 1871, the defendant sold and conveyed to the inhabitants of Lancaster a parcel of land contiguous to a county road within the limits of that town. The parcel was bought by the inhabitants for the purpose of straightening, grading and relocating the road and for obtaining the material necessary to be used in the grading ; though this purpose did not appear in the
The defendant asked the court to rule that the inhabitants of Lancaster had no right to buy land for the purpose of maintaining shade or ornamental trees upon it, or for laying out, straightening or relocating a highway or town way, or for the purpose of obtaining material for the repair of highways, and had no title to the tree in question. The court refused so to rule, but did rule that, if the jury found that the tree was upon the land conveyed in fee to the inhabitants of Lancaster for the purpose for which it was bought and used, and the tree was growing upon it as a shade tree or for ornament, and the defendant wantonly and without cause cut it down, then the' indictment could be maintained. To this ruling the defendant excepted, and the jury found that he was guilty.
The defendant now contends that towns have no authority to purchase land for such purposes, and that the deed was void, and conveyed to the inhabitants no title whatever; and also that the indictment cannot be maintained under the Gen. Sts. c. 161, § 82, but should have been found under the Gen. Sts. e. 46, § 7, or the St. of 1867, e. 242.
The first question presented in the defendant’s argument is, whether a town may purchase land for the purpose of constructing a highway or a town way over it, or for the purpose of obtaining material for the construction and repair of its highways.
It is provided in the Gen. Sts. c. 18, § 9, that towns may hold real estate for the public use of their inhabitants, and may convey the same by vote of their inhabitants, or by deed of their committee or agents ; they may also hold personal estate for the use of their inhabitants, and dispose of the same. They may hold both real and personal estate in trust for the support of
It may also be observed, that from the earliest time towns have been in the habit of holding and disposing of real estate. Under the colony ordinance of 1636, they were empowered to grant land within their limits for public uses, with power by vote to divide them among their inhabitants, subject to the paramount authority of the General Court, which reserved to itself and habitually exercised the power to grant lands so held by a town. 1 Mass. Col. Rec. 172. Lynn v. Nahant, 113 Mass. 433, 448. And in that case it was decided that land so held by Lynn passed to hi ah ant by its act of incorporation in 1853. It has also been decided in numerous cases that towns can properly take, hold and dispose of land under grants by the proprietors of common lands. Gloucester v. Gaffney, 8 Allen, 11. Green v. Putnam, 8 Cush. 21. See also Emerson v. Wiley, 10 Pick. 310. And towns may purchase and occupy land for the purpose of erecting market-houses and town-houses for the use of their inhabitants, and they may do this under the general powers conferred upon them, for the statutes give them no special authority to purchase and hold land for that purpose. Stetson v. Kempton, 13 Mass. 272. Spaulding v. Lowell, 23 Pick. 71. French v. Quincy, 3 Allen, 9. Hadsell v. Hancock, 3 Gray, 526. See also Hardy v. Waltham, 3 Met. 163; Willard v. New-buryport, 12 Pick. 227. There was no express provision empow
It may therefore be assumed that towns in this Commonwealth may hold real estate by gift or purchase, whenever, in the exercise of their corporate powers, or in the performance of any duty imposed by law, it is necessary or expedient for the interest of their inhabitants to do so. And it was said by Chief Justice Parker, in Worcester v. Eaton, 13 Mass. 371, 378, “with respect to the capacity of the demandants,” the town of Worcester, “to take by purchase and to hold real estate, we cannot deny to towns such right,- since, by immemorial usage of the country, it appears to have been an incident to their corporate powers; and, after alluding to the colonial acts respecting lands owned by towns in this corporate capacity, he added, “ and it is well' known that many towns, at this day, are the owners of real estate, which they hold in their corporate capacity, other than such as may be necessary to erect school-houses and other public buildings upon.”
We have thus stated in general terms the powers of towns to take and hold real estate, as they are declared in the statutes and expounded in the decisions of the court, for the purpose of showing that towns may in all cases, where it is necessary and convenient- for the proper execution of their powers, hold real estate. There is no provision in the statutes, forbidding towns to hold real estate for any particular purposes, or to purchase and hold it for highways or town ways, or for obtaining material for their repair. Whether a town, instead of paying the owner of land, over which a way is laid out, the damages, as provided in the Gen. Sts. c. 43, may purchase the land and take a deed from
But these questions, as stated and as argued at the bar, are not necessarily involved in the decision of this case, and we are not called upon to consider them, except so far as to determine whether the deed of the defendant to the town was absolutely void. If it was, the defendant cannot be convicted of cutting down bis own tree. If not void, then the town, having the capacity to take and hold land by purchase, became lawfully seised of the premises on the delivery of the deed, and may hold them, and they may be properly described as the land of the town, and not of the defendant. Until the deed is avoided by the grantor or otherwise, the land remains the property of the town ; and the questions whether the town exceeded its powers in taking the conveyance, and, if so, what consequences would ensue, are to be determined in other forms of proceeding, wherein the town may be a party.
We are of opinion that this was decided in Worcester v. Eaton, ubi supra, where it was held that a gift or devise to a town in its corporate capacity was not void; and although the court did not determine that the acceptance of a deed by the officers of a town, the consideration of which would impose a tax on the inhabitants, created a contract which the town was authorized to make, or that the grantor might not avoid such a deed, yet it was determined that, the deed not having been avoided by the grantor, the town could maintain an action, upon its own seisin under the deed, for the recovery of the land from third parties claiming under a conveyance from the same grantor. The deed under which the demandant claimed was from Betsy Flagg, who was lawfully seised in Worcester of an estate in freehold for her life. The consideration named therein was five dollars, and also that the inhabitants of Worcester would provide for her comfortable support and maintenance during her natural life, or while she remained sole and unmarried. Whether the town of Wor
It may also be questioned whether, even if the town has exceeded its authority, the plaintiff can have the title restored to him without paying back the consideration he has received; for it was held in Frost v. Belmont, 6 Allen, 152, that the town might recover money unlawfully paid out by itself or its agents .from those who received it.
It has been held in other states that, if a municipal corporation exceeds its power in the purchase of lands, the courts cannot inquire into the question in a collateral way, or at the instance of an individual, but it can only be done at the instance of the state; the question has not arisen in Massachusetts in regard to the power of municipal corporations. In Chambers v. St. Louis, 29 Misso. 543, it was decided that whether a municipal corporation, authorized to purchase and hold real estate for certain purposes, transcends the exact limits of its power, and acquires land which it is not authorized to hold for any of the purposes of the corporation, can only be raised and determined in a proceeding instituted at the instance
It appears that no legal highway or town way was ever laid out over the land in question, and the defendant could not therefore be indicted for cutting down a tree under the Gen. Sts. e. 46, § 7, as amended by the St. of 1867, a. 242. And as the tree did not stand on land of the defendant, but on land belonging to the town of Lancaster, he could be indicted under the Gen. Sts. c. 161, § 82, if he cut it down wantonly and without cause.
Exceptions overruled.