186 Mass. 282 | Mass. | 1904
1. The defendants rely upon St. 1902, c. 465, for their justification. The first contention of the plaintiff is that the alleged taking of the land for a hospital is invalid because the provisions of the statute were not complied with in that the taking was by the mayor and not by the city. The statute (§ 1) provided that “ the city of Everett by its city council may take any lands within the limits of said city ” for the erection of a hospital for the care of persons suffering from contagious diseases, and that (§ 2) “ within sixty days after the taking of any land . . . the city council shall cause to be recorded in the registry of deeds ... a description thereof sufficiently accurate for identification, with a statement of the purpose for which the same was taken, which statement shall be signed by the mayor of the city”; and thereupon the fee in the land vests in the city. The vote of the city council, approved July 22, 1902, after reciting the fact that by this statute the city had been authorized to take land for the purposes therein named, ordered that “the mayor be and he is hereby authorized and instructed for and in behalf of the city
This statement, after reciting that by virtue of the St. of 1902, c. 465, “ and by an order passed by its city council and approved by its mayor July 22, 1902,” (which is the order first above mentioned) the city of Everett “ did duly take the lands . . . hereinafter described,” for hospital purposes, proceeds as follows: “Now therefore, the said city of Everett, by and through its mayor, . . . does. . . hereby file . . . the following description of the lands so taken.” Then follows an accurate description of the land named in the order of the city council. The statement is signed “ Chas. Bruce, Mayor of Everett,” and to it is affixed the city seal.
From an inspection of these papers it is clear that, while the order of the city council is not in the best form, nothing was left to the discretion of the mayor; that the taking was made by the order of the city council, and that the duty of the mayor which he was instructed to perform was to sign and file, in behalf of the city, the statement required by the second section of the statute. The taking was in compliance with the statute. We have passed upon the question of its validity, although it is difficult to see how any one except the person whose land was taken can take advantage of any irregularities. If the landowner chooses to waive the irregularities in the taking and to accept payment of the damages, it is a good taking certainly as to him.
Decree affirmed.