221 Mass. 34 | Mass. | 1915
The city of Springfield, by proceedings which culminated in July, 1914, under the authority of St. 1904, c. 443, ■ undertook to widen an existing public way. Its appropriate boards of officers determined to take in fee by right of eminent domain the whole of several estates, parts of which actually were required for such widening and parts of which were remnants lying outside the limits of the widening. A part of the petitioner’s estate was required for the widening, but no part of its estate lying outside the limits of the widening was taken or attempted to be taken. Nevertheless, the part of its estate lying within the limits of the widening, together with other estates lying partly within and partly without such limits, were taken in fee. It is contended that this was beyond the power conferred by the statute. Its governing provision in this respect is in § 2, in these words: “Any city in the Commonwealth so far as the territory within its limits is concerned, may . . . take in fee by right of eminent domain the whole of any estate, part of which is actually required for the laying out, alteration or location by it of any public work, if the remnant left after talcing such part would from its' size or shape be unsuited for the erection of suitable and appropriate buildings, and if public convenience and necessity require such taking.”
These words rightly interpreted confer no authority to take the fee of any land except in cases where there is an unsuitable remnant remaining after the part actually required for the public undertaking is seized by eminent domain. The right to take in fee expressly by unequivocal phrase is made conditional upon there being such remnant and its being taken.
■ This is the reason of the statute as well. Ordinarily, as proved by the experience of our history in the laying out of public ways,
The terms of the statute by which the power to exercise eminent domain is conferred must be complied with. A loose attempt plainly in excess of the authority conferred cannot be construed' as an exercise of the power actually existing when the words used in the instrument of taking are not fairly susceptible of being construed to mean that which in law was allowed. The attempt by the respondent to take the fee "of the petitioner’s land when it was empowered only to take an easement in that land cannot fairly be construed as a taking of an easement. Lajoie v. Lowell, 214 Mass. 8.
Under the peculiar circumstances of this case, we are of opinion that the writ ought to issue in the interests both of the city and the petitioner. Upon the estate of the petitioner within the limits of the widening are brick buildings in which a manufacturing business is conducted and in which, presumably, there is machinery more or less expensive and valuable. The title to buildings and machinery ought to be made clear by a legal taking. Although ordinarily delay like that in the case at bar before bringing the petition for certiorari would be decisive against the
Writ to issue.