133 Mass. 321 | Mass. | 1882
The petitioners ask that the order of the park commissioners laying an assessment may be quashed, on this ground among others, that at the time of the passage of the order the park was not in any sense constructed so as to be fit for public use as a park. It appears, indeed, by the record of the park commissioners, that a park had been located and laid out; but the petitioners contend that it is competent for them to show by evidence that the park had not in fact been laid out within the meaning of the words “ laying out ” contained in the statute, and that the facts agreed show this; that the taking of the land and calling it a public park are not laying out a park within
The St. of 1875, c. 185, however difficult it may be to construe, is largely made up of words and clauses that have been used in previous statutes relating to similar subjects. The St. of 1874, c. 97, which is “An act to provide for a public park in the city of Somerville,” is, however, more explicit than the St. of 1875, c. 185, in the matter of assessment for benefits. Section 3 provides that, “ at any time within two years after the land is purchased or taken under this act, the city council ” may assess “a proportional share of the cost of the land so purchased or taken, and of the expense of laying out, grading and making said park; but in no case shall the assessment exceed one half of the amount of such adjudged benefit and advantage. Nor shall the same be made until the work of laying out, grading and making said park is completed.” This statute was held to be constitutional in Holt v. City Council of Somerville, 127 Mass. 408.
The St. of 1871, c. 382, § 1, provides that, “ at any time within two years after any street, highway or other way is laid out, altered, widened, graded or discontinued,” the board of city or town officers may assess “ a proportional share of the expense of laying out, alteration, widening, grading or discontinuance; but in no case shall the assessment exceed one half the amount of such adjudged benefit and advantage, nor shall the same be made until the work of laying out, altering, widening and grading is completed or discontinuance made.”
The St. of 1869, c. 367, § 1, required that “ such assessment shall be laid within two years after the passage of the order for the laying out, widening, extending, discontinuing, grading or altering, and not afterwards.” The St. of 1869, c. 169, extended the St. of 1866, c. 174, and the St. of 1868, c. 276, to all towns of the Commonwealth which by vote should accept the act, and to all cities which had accepted or should thereafter accept the St. of 1868, c. 75; and in § 1 provided that “no assessments shall be made under the provisions of said acts until the work of laying out, altering, widening and improving any street or way shall be completed.”
Chase v. Aldermen of Springfield, 119 Mass. 556, and Lincoln v. Worcester, 122 Mass. 119, both arose under the St. of 1871, c. 382, which required the work of, laying out, altering, widening and grading to be completed before the assessment could be made.
Hitchcock v. Aldermen of Springfield, 121 Mass. 382, arose under the St. of 1871, c. 382, and decides that “ within the meaning of this statute, a street is ‘laid out, altered, graded,’ &c., when the order to lay out, alter or grade is passed by the competent authority. The date of the passage of such an order fixes the time from which the rights of the parties are to be determined, and when the limitation of two years begins to run.”
Whiting v. Mayor & Aldermen of Boston, 106 Mass. 89, arose under the St. of 1865, c. 159. Section 6 of this act provides that “ the whole expense of the said widening, including the damages mentioned in the third section of this act, and the net expense of grading the whole widened street, after deducting the estimated net proceeds of the earth and gravel removed, shall be assessed upon all the estates abutting upon the said widened street, in proportion to their value, as they shall be appraised by the mayor and aldermen, when the improvements have been made.” Two questions, among others, were decided in this case, which have a resemblance to some of the objections to the assessment taken in the case at bar. The court say: “ The objection that sidewalks had not been laid is not sufficient to impeach the assessment as premature. If sidewalks are necessary to the proper completion of the street for public use, the city is not discharged of its obligation to provide them. The work which the statute contemplated is that of ‘ grading the whole
Prince v. Boston, 111 Mass. 226, arose under the St. of 1866, c. 174, and it was decided that the-assessment of the betterments might be laid after the widening of the street. The court say :
“ But we have recently decided that an assessment of this kind is necessarily subsequent to the widening. From the nature of the case it cannot be made until the completion of the work. One element in the apportionment, the net expense of grading the whole widened street, cannot be sooner ascertained.” Ill Mass. 230. And again, on page 231: “ It is therefore not only unnecessary, but it is also impossible, that the assessment of the expenses among the persons who have derived benefit from the improvement should be contemporaneous with, and make a part of, the original adjudication widening the street and awarding damages.”
Jones v. Aldermen of Boston, 104 Mass. 461, contains four • cases, two of which arose under the St. of 1866, c. 174, and two under that statute as amended by the St. of 1868, c. 276. The court say, on page 465: “ The right of the petitioners to damages, and their liability to be assessed for benefits received by the widening, accrued at the time of the widening. The assessment of the damages, and the adjudication of the amount of benefit
The words “ laying out,” “ locating anew,” “ altering,” “ widening,” “ grading ” and “ discontinuing,” when used in statutes in reference to highways, have each a well-known meaning. Pub. Sts. c. 49.
“ Laying out ” is, and has been from the earliest times, the appropriate expression for locating and establishing a new highway. Without citing colonial or provincial statutes, reference may be .made to the St. of 1786, e. 67. Section 4 of that statute provided that, after it has been ascertained to be of common convenience or necessity to have a new way laid out, the Court of General Sessions of the Peace shall appoint a committee to lay out said highway, “ and they shall ascertain the place and course of said road, in the best way and manner they can; which having done, they, or the major part of them, shall make return thereof, under their
The St. of 1827, c. 77, which established county commissioners, required, in § 7: “ And when they shall order any highway or road to be laid out, or altered, the said county commissioners shall perform all the duties by law required of committees for laying out highways. And they shall also determine, and specify in their return of said laying out or alteration, the manner in which the highway or road so laid out, or altered, shall be made, and the time or times within which the same shall be completed.” This provision, with others, was incorporated in the Rev. Sts. c. 24, § 10. See also Gen. Sts. c. 43, § 13; Pub. Sts. c. 49, § 9.
The provisions of statute giving an owner of land compensation for damage occasioned by reason “ of any raising, lowering, or other act done for the purpose of repairing such way,” was first enacted in the Rev. Sts. c. 25, § 6, in consequence, perhaps, of the decision in Callender v. Marsh, 1 Pick. 418. See Brown v. Lowell, 8 Met. 172.
The principle, in assessing damages, of deducting from the general damages any special benefit resulting to the land-owner from the laying out of the way, has been constantly recognized by the court. Commonwealth v. Norfolk Sessions, 5 Mass. 435. Commonwealth v. Middlesex Sessions, 9 Mass. 388.
As, under the early statutes, the order of laying out a highway did not necessarily, in reference to the manner of construction,
It is contended, however, that the words “ laying out,” in the St. of 1875, o. 185, cannot have the same meaning as in the statutes
The St. of 1875, c. 185, established a board of park commissioners, and in § 3 it is provided that “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; to make rules for the use and government thereof,” “ and generally to do all needful acts for the proper execution of the powers and duties granted to or imposed upon said city, or said board, by this act,” &c.
It is to be noticed that this is a power to locate more than one park, and the construction of this act must be the same whether any particular park is located where this park has been, or in South Boston, or in what was Roxbury, or Dorchester, or Brighton, or in any other place within the limits of the city of Boston. The particular condition of the land taken for a park at the time it is taken, whether or not it is in a suitable condition for immediate public use as a park, can have no effect upon the construction to be given to the act. What then is the meaning of the location, as distinguished from the laying out of a park ? The Word “ locating ” has not acquired a technical signification in our statutes, except perhaps in the locating anew of a road. Pub. Sts. c. 49, § 13. Gen. Sts. c. 43, § 12. The word “ location ” is sometimes used, in the statutes relating to ways, to mean the land included within the limits of the way as laid out, and sometimes as synonymous with “ laying out.” The ordinary meaning of the words “ to locate ” is “ to ascertain and determine the place of,” and in this sense they
It is argued that, as in § 3 the words “to locate” are used in the first clause of the section, and the words “to lay out” in a subsequent clause in connection with “ improve, govern and regulate any such park or parks,” the words “ to locate ” must be construed in the sense in which the words “ to lay out ” are used in statutes relating to highways, and that “to lay out” must be construed to mean something analogous to the words “to improve,” &c. But without considering how much weight ought to be given to the particular words of this section, disconnected from the other provisions of the statute, such an argument gives no distinct force to the words “ to lay out.”
It was undoubtedly the intention of the statute to give the board of commissioners full authority to locate and lay out a park or parks, and to construct, improve, govern and regulate such parks as should have been by them located and laid out, subject to the provision “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.” If the intention of the statute had been that the commissioners should only locate and lay out parks, and that some other authority should construct, improve, govern and regulate the parks so laid out, the additional words “ improve,” &c. would of course have been omitted. The construction and regulation of public parks is not governed by general laws, and in § 3, the words “ to improve, govern and regulate” were inserted for the purpose of making it certain that such powers were conferred upon a board specially constituted by that statute, and were not inserted for the purpose of modifying the meaning of the words “ to lay out,” as established in this Commonwealth.
The St. of 1871, c. 382, § 1, authorizes an assessment for benefits, not only when a new way is laid out, but also when an old way is altered, widened, graded or discontinued. Under this statute the benefit received from the laying out of a new way is the benefit received from the laying out and construction of the new way, and undoubtedly the benefit received from the locating and laying out of a park, in § 7, is the benefit received from the locating, laying out and construction of a park; but there is no provision for any new assessment for benefits received from any alteration or improvement of the park made after the park has been once laid out and constructed. When a way is laid out, there is an obligation existing somewhere to construct it as laid out, and this statute undoubtedly imposes an obligation on the board of park commissioners to construct the park laid out in some manner to be determined by them, if sufficient appropriations of money are made by the city council. It is unnecessary to determine here whether, if the city council should refuse or neglect to make sufficient appropriations, or if, sufficient appropriations having been made, the board of park commissioners should refuse or neglect properly to construct the park, a writ of mandamus would issue, as in the case of a neglect or refusal to construct a way lawfully laid out. See Richards v. County Commissioners, 120 Mass. 401; Whiting v. Mayor Aldermen of Boston, 106 Mass. 89.
It is impossible to hold, as matter of law, that a park cannot be located and laid out, even if there is no adequate provision of law whereby courts can compel it to be constructed in a manner which they may deem suitable for public use. If it becomes a nuisance, it can be abated; and there might be a public park, intended to be kept open for prospect, air and light, or
It is argued that, in consequence of the provisions of § 8, as well as in the nature of things, the assessment for benefits cannot be laid until the park is substantially constructed, even if it has been laid out within the meaning of the statute. No time is prescribed by the statute within which the park must be constructed, and it cannot have been unintentional that the provision of the St. of 1871, c. 382, § 4, to the effect that no assessment for benefits shall be made until the work of laying out is completed, was omitted. The statute itself shows that it was drawn with the statutes then existing relating to betterments in mind. Its provisions in relation to betterments were largely taken from them. It might perhaps have been thought that none of the parks that would be located under the act could be constructed in two years. Whatever the reason may have been, the omission to require the park to be completed before an assessment could be made, cannot be treated as an accidental or unintentional omission. At the same time the limitation of two years was put in, which had been first inserted in the statutes relating to betterments in the St. of 1869, c. 367. The statute under consideration is in this respect different from the statute law as it ever before existed in this Commonwealth. Before the St. of 1869, c. 169, there was no provision in the statute that the assessment should be made after the work was completed, or within any limit of time; this statute provided that
The papers in this case disclose more than one order. There is an order of the city council of July 23, 1877, authorizing the treasurer to borrow $450,000, “ to be expended by the park commissioners in the purchase of not less than one hundred acres of land or flats ” within an area that is there described by bounds; there is an order of the city council of December 24, 1877, by which the park commissioners are authorized “ to complete the purchase of any part or parts of the said tract upon the terms provided in the said order, at such times as they shall deem expedient; ” and there is an order of the city council, approved November 21, 1879, authorizing the park commissioners, so far as the consent of the city council may be necessary thereto, to exercise their power of taking land for the proposed park. And these are the three orders of the park commissioners which have been heretofore mentioned. It appears by the agreed facts, that at the date of the assessment of betterments the city of Boston had theretofore actually expended $439,690.90 in the purchase of different parcels of land for the park in different sums paid from December 29, 1877, to July 11, 1879, and had theretofore expended $111,763.16 for the filling, grading and surveying of the Back Bay Park. It is manifest that the park was in a general sense located, and some work done on its construction, before the passage of the formal order of December 27, 1879, laying out the park. By this order the land not already purchased within the boundaries described in the order was taken, so that by the terms of the act the fee vested in the city of Boston, (§ 6,) and the whole land so bounded was formally established and “ created ” as a public park. It is plain, as has been said, that the Legislature in this act did intentionally omit to require that the park should be fully completed before the assessment should be laid, and it is plain that it did not intend to leave the time for making the assessments indefinitely open; and it is also plain that it did not fully consider the difficulties which must arise in making an assessment, for benefits received from the locating and laying out of a park, before the park is constructed, when the manner in which it will or may be constructed, and the time within which it must be constructed, are neither prescribed
But the difficulties of construing the act are not necessarily hi ■the act itself, but in its application to the subject matter. If the act related to a highway, there would be no difficulty in its ■construction, under the fact found, that at the date of the assessment the expenses actually incurred exceeded the amount of ■the assessments. Chase v. Aldermen of Springfield, 119 Mass. 556. The two years after the passage of the order “ the execution of which causes the benefit for which the assessment is made,” would be reckoned from the passage of the order of laying out; and the most reasonable construction of this statute, we think, is that, as it is “ the benefit and advantage from the locating and laying out of a park ” which are to be considered in making an assessment, it is the order of laying out the park from the passage of which the two years, within which the assessment must be made, begin to run, and that the execution of this order causes the benefit for which the assessment is made. •See St. 1871, c. 382, § 1; St. 1869, c. 367, § 1. Unless then we can .say, as matter of law, that, under the facts of this case, there can be, from the locating and laying out of this park, in the manner in which they have been done, no benefit or advantage to the real estate to which the assessments apply, we cannot quash the order of assessment; and that we cannot say.
The question of benefit or no benefit, and of the amount of the benefit, if any, is a question of fact for the jury, if any person has been aggrieved by the assessment. It is useless here to consider the rules of law in accordance with which the amount of the benefit received must be determined by a jury of the Superior Court, in case any party aggrieved by this assessment shall make application to that court for a jury. If it be assumed, without consideration, that the benefits received must be confined to the benefits received from the park in the condition it was in at the time the assessments were made, and that no possible or probable future construction or improvement of the park can be considered, or if all the facts existing at the time the assessment was made that can actually affect the market value of land can be considered in estimating the benefits, in either case it is a question' of fact for the jury whether any
Petition must be dismissed.