192 Mass. 220 | Mass. | 1906
In this case the Superior Court allowed a motion of the petitioner to dismiss the appeal, taken to that court from an order of the Land Court, upon a petition for the registration of a title. The respondent took an exception to the ruling of the Superior Court, and this presents the only question before us. The ground of the decision was that the city of Woburn had no interest which gave it a standing as a party and entitled it to prosecute an appeal. The question which arose in the Land Court was, whether the petitioner’s title was good up to the line of the street as originally laid out, or whether the public had acquired a way by prescription over a strip of land, about two and one half feet wide, lying between the easterly line of Main Street as laid out and the base line of the bank building standing on the petitioner’s lot.
A fundamental inquiry is whether the Land Court, in a proceeding of this kind, has a right to determine such a question. We have no doubt that it has this right. An application for the registration of a title is, by the terms of the statute, a proceeding in rem, which operates directly to vest and establish title to the land. R. L. c. 128, § 1. The statute contains elaborate provisions for the determination of rights claimed in the land, which shall be binding upon all the world. R. L. c. 128, §§ 87, 38. It requires not only special notice to all persons known to be interested, but general notice “ to all whom it may concern.” R. L. c. 128, §§ 30, 31. The certificate is made conclusive as to all incumbrances, with certain exceptions mentioned in § 38. This itself implies that the court is to pass upon the validity of
The right of travellers to use the way is a public easement, and the right by prescription, claimed in the narrow strip between the located line of the street and the base line of the building, is of the same kind. Ordinarily, rights of the general public are represented in court by the attorney general, and under this statute he may not only appear under the general description of parties in the notice “ to all whom it may concern,” (see § 33) but he must be given special notice “ if the land borders on a river, navigable stream or shore, or on an ar.m of the sea where a river or harbor line has been established, or on a great pond, or if it otherwise appears from the application or the proceedings that the Commonwealth may have a claim adverse to that of the applicant.” § 31. In like manner, if the applicant requests to have the line of a public way determined, notice must be given to the mayor of the city or to one of the selectmen of the town or towns in which the land lies, or if the way is a highway, to one of the county commissioners of the county or counties in which the land lies. § 31.
In a case like the present the statute expressly recognizes the mayor of the city as the person to whom notice must be sent specially by registered letter. This notice is given him in his official capacity, as a representative of the city, and the provision is a statutory recognition of the rights of cities and towns to be heard upon questions affecting the boundaries of public ways. If a city must be given notice, and an opportunity to be heard, in such a case, it has a right of appeal to the Superior Court under § 13.
There are good reasons for giving cities and towns a right to to be heard when the boundaries of ways are to be determined. While they have no title to the land in public ways, by virtue of the laying out of the ways they have an interest in them and in the public easement which subjects the land to use for the construction and repair of the ways as well as for travel over them. They are bound by law to keep them safe and convenient for
Whether the attorney general, as a representative of the public, had also a right to be heard, it is unnecessary to decide. In McQuesten v. Attorney General, 187 Mass. 185, the attorney general represented public rights, and the town was also a party claiming municipal rights.
We are of opinion that the appeal was wrongly dismissed.
Exceptions sustained.