244 Mass. 148 | Mass. | 1923
The petitioner alleges that in December, 1907, the armory commissioners took in fee a certain parcel of land adjoining her land, for and in the name of the Commonwealth under St. 1907, c. 526; that on the parcel so taken there was an armory of the first class then completed or in process of construction, which has since been maintained with its grounds as a State armory; that in 1908, without objection by the petitioner’s predecessor in title, the commissioners constructed a permanent wall and an embankment of heavy stone on the northwesterly side of the armory building upon the land now .belonging to the petitioner; the wall and filling occupied about three hundred and one square feet; the width of the tract so occupied varied from
The respondent demurred on the ground that the petitioner was seeking to recover damages for the commission of an alleged tort; that the Commonwealth had never consented to be impleaded in its courts for such a cause of action; and that no cause of action is set forth in the petition. The demurrer was sustained and a decree entered dismissing the petition. The petitioner appealed.
Under St. 1907, c. 526, § 7, the armory commissioners were authorized to acquire land by purchase or otherwise, and in default of an agreement as to the value of the land taken, either party might have a jury in the Superior Court determine such value, in the manner provided for the determination of the value of land when taken for the laying out of highways, if the petition is filed within one year after the taking. This statute was not complied with and the petitioner has no remedy under it.
Under our system of jurisprudence the Commonwealth cannot be impleaded in its own courts except with its consent, and, when that consent is granted, it can be impleaded only in the manner and to the extent expressed in the statute. McArthur Brothers
The petitioner contends that she can recover under G. L. c. 258, under an implied contract for use and occupation of her land. To maintain an action for use and occupation of land, there must be some evidence to establish the relation of landlord and tenant, and such relation must grow out of a contract, expressed or implied. Stevenson v. Donnelly, 221 Mass. 161,165. Kirchgassner v. Rodick, 170 Mass. 543. Central Mills Co. v. Hart, 124 Mass. 123, 125. There was no express contract between the respondent and the petitioner, the authority of the armory commissioners was limited by the terms of the St. 1907, c. 526, and no contract can be implied on the part of the Commonwealth from the facts alleged in the petition. The demurrer was sustained rightly.
Decree dismissing the bill affirmed.