131 Mass. 225 | Mass. | 1881
This is a petition' for a writ of certiorari to quash an order of the board of park commissioners of the city of Boston under the St. of 1875, c. 185, assessing lands of the petitioners and others for special' benefits received from the locating and laying out of a park.
By §§ 1, 2, of that statute, the mayor of the city of Boston was authorized, with the approval of the city council, forthwith to appoint three commissioners, to hold office until the expiration of two, three and four years respectively from May 1, 1875,
By § 8, “said board shall have power to locate within the limits of the city of Boston one or more public parks; and for that purpose, from time to time, to take in fee, by purchase or otherwise, any and all such lands as said board may deem desirable therefor; or to take bonds for the conveyance thereof to said city; to lay out, improve, govern and regulate any such park or parks, and the use thereof; ” and generally to do all acts needful for the proper execution of the powers and duties granted or imposed by the statute: “ provided, however, that no land shall be taken, or other thing involving an expenditure of money done, until an appropriation, sufficient to cover the estimated expense thereof, shall have been made by a vote of two thirds of each branch of the city council of said city.”
By § 4, the board shall, within sixty days of the taking of any land under the statute, file a description thereof in the registry of deeds. By § 5, the board shall estimate and determine all damages sustained by the taking of land, or other acts of the board in the execution of its powers; but any party aggrieved by such determination may have his damages assessed •by a jury in the Superior Court, as in the case of “ damages sustained by reason of the laying out of ways in the city of Boston.” By § 6, the fee of all lands taken or purchased by the board shall vest in the city of Boston; the city shall be liable to pay all damages assessed or determined as provided in § 5, and all other costs and expenses incurred by the board in the execution of its powers; and is also authorized “ to take and bold in trust or otherwise any devise, grant, gift or bequest that may be made for the purpose of laying out, improving or ornamenting any parks in said city.”
By § 7, “ any real estate in the city of Boston, which in the opinion of said board shall receive any benefit and advantage from the locating and laying out of a park under the provisions of this act, beyond the general advantages to all real estate in the city of Boston, may, after like notice to all parties interested as is provided by law to be given by the street commissioners of
By § 8, “no assessment shall be made as provided in the preceding section, except within two years after the passage of the order, the execution of which causes the benefit for which the assessment is made.” By the subsequent sections, all assessments made under this statute shall constitute a lien upon the real estate so assessed; and any party aggrieved by any assessment may have the amount of the benefit received by his estate assessed by a jury, as in the case of the laying out of ways in Boston.
In 1877, by orders of the city council, passed by vote of more than two thirds of each branch, the park commissioners were authorized to expend the sum of $450,000, or so much thereof as might be required, to purchase one hundred acres of land or flats within certain boundaries in the Back Bay, so called; and the petition for a writ of certiorari alleges that thereafter, and before December 27, 1879, such lands and flats were purchased by the park commissioners, and conveyed to the city by deeds duly recorded and paid for by the city.
On December 18,1879, the board of park commissioners passed an order, reciting that, “in the opinion of this board, it is desirable that a parcel of land belonging to the city of Boston ” (then follows a description of the land and flats aforesaid) and certain parcels owned by other parties (likewise described) “ should be taken and laid out as a public park,” and directing notice to all persons interested “ that this board intend to take the lands before mentioned, and lay out the same as a public park,” and to assess a portion of the expense thereof upon the estates that will be benefited by “the said proposed laying out of said park,” and that any objections “ to said taking and laying out or to said assessment ” would be heard on December 26, 1879.
On the day so appointed, a hearing was had accordingly, at which no one appeared to object to the taking and laying
First. An order stating that the commissioners, “ by the authority conferred upon us by the said act, and by the city council of said city of Boston, which has made the appropriation necessary to cover the estimated expenses of our action in the premises, have taken, and hereby do take and create as a public park or parks, the following described parcels of land, with all the buildings and fixtures thereon, situated in the said city of Boston, viz.” (then followed descriptions of the lands) “ to have and to hold the said several parcels of land to the said city of Boston, its successors and assigns, to its and their sole use and benefit forever, agreeably to the provisions of said act.”
Second. “ Whereas, pursuant to an act of this board passed December 27,1879, a public park or parks was located and laid out in the city of Boston at an estimated expense of $465,226.10; and whereas, in the. opinion of the board, the estates named in the foregoing schedule have been benefited by the location or laying out of said park or parks, and due notice has been given of the intention of the board to assess betterments thereon; it is therefore hereby voted, that the estates named in the schedule be, and they hereby are, respectively charged with the sums therein severally set against them, such sums so assessed not exceeding one half the amount of the adjudged benefit to the estates by the said location and laying out.”
The schedule prefixed to the last order is entitled “ Schedule of assessments made by the board of park commissioners upon the estates benefited by the locating and laying out of a public park or parks in,the city of Boston, as authorized and enacted by a resolve and act of the board, passed December 27,1879, the expense of which was estimated at the time of the passage of said location and laying out at $465,226.10.” The schedule consists of five columns, successively showing the number of each lot on a plan, its approximate area in feet, its owner, its boundaries and the amount assessed upon it; and includes lands owned by the petitioners.
But more serious objections have been suggested to the validity of that order. It is contended that, in the provision of the statute authorizing the commissioners to assess estates, receiving special benefit “ from the locating and laying out of a park under the provisions of this act,” for “ a proportional share of the expense of such location and laying out,” the words “ laying out” are not used as synonymous with “locating,” nor in the same sense as in the statutes concerning the laying out of highways, but are used in the sense in which those words are used when speaking of the,laying out of a garden, including not merely the defining of the boundaries on the surface of the ground, but also such changes in the surface as are necessary to adapt the land to the purpose intended; and that the park must have been so laid out, and the expense of the location and
These questions cannot be decided without more consideration than, in the pressure of other duties since this case was argued, we have been able to give to them. The provisions of the statute are somewhat vague and obscure; and it is possible that further legislation may be found requisite to carry out the intentions of the Legislature. But the case as now presented does not require a determination of these questions, nor of the question whether successive assessments can be laid from time to time until the park is completed.
It is sufficient to say that we are satisfied that the statute does not authorize any assessment to be laid, except for the amount of expenses which have either been actually paid, or have at least been so far incurred that the city is under a liability from which it cannot escape to pay them. Section 7 authorizes an assessment to be made only “for a proportional share of the expense,” not of “ the estimated expense ” for which the city council is required by § 3 to make an appropriation. If the owners of adjacent lands should be assessed for an estimated expense, and the park should afterward be constructed at a less expense, or never be constructed at all, no provision is made by which they can recover back the sums assessed or any part thereof.
If, therefore, the assessment complained of is for expenses which have neither been paid nor incurred, the writ of certiorari must issue. But in the present aspect of the case the proper order will be that the petition stand for further hearing before a single justice, so that the respondents may have an opportunity to show that the city has paid or become liable for the amount assessed. Ordered accordingly.