This is a petition for a writ of mandamus brought by residents of Leominster against the city of Leominster (city), its mayor, the members of its council (council), and Clarence E. and Doris Gagne (Gagne). Following a trial a judge of the Superior Court made findings of fact and ordered the petition dismissed. The petitioners appealed from that order. The cаse is before us with a transcript of all the testimony and the exhibits which were before the court. Thus, all questions of law, fact and discretion are open for our decision. From this evidence we can find facts not expressly found by the judge and, if convinced that he was plainly wrong, we can find facts contrary to his findings.
Crawford
v.
Building Insp. of Barnstable,
By a deed dated August 25, 1935, one Frеd A. Whitney conveyed to the city a parcel of land (Whitney Field) consisting of about eight acres, six of which are the subject of the present litigation. The deed, which was a warranty deed in statutory form, recited that the conveyance was “for consideration paid.” It does not appear to be disputed that the transaction was in fact a gift. There was no limitation on the city’s use of this
In 1968 and 1969 Gagne made overtures to the council and the commission with a view to acquiring part of Whitney Field for use in connection with a commercial venture operated by him on abutting land to the west. In 1970 the council adopted an order under which six acres of Whitney Field would be sold to Gagne, which order included a determination that the land “is no longer
On September 2, 1970, a group of residents of Leom-instеr brought a petition for a writ of mandamus to compel the mayor and the council to place the order for the sale of the premises on the agenda of their next meeting for further consideration in accordance with provisions of the city charter and to obtain certain injunctive relief. This petition was dismissed by the Suрerior Court on December 22, 1970. The petitioners filed a timely appeal but on October 20, 1971, filed a waiver of that appeal. On October 25, 1971, judgment was entered for the respondents.
On June 28, 1971, while that litigation was pending, the city, by its mayor, made an agreement with Gagne which purported to extend the time for the performance of all of the conditions in the deed from the city to Gagne to “one (1) year after the final decision by the Massachusetts Supreme Judicial Court” in the then
Although entitled a petition for a writ of mandamus, the petition before us, except for one prayer, is essentially a petition for declaratory relief with respect to the validity of the deed from the city to Gagne. The petitionеrs contend that the conveyance is void for either of the following reasons: (1) that the conveyance was a diversion of park or kindred public land from a public use to a new and inconsistent private use without the city’s having first obtained the necessary authority from the General Court; and (2) that the requirements of G. L. c. 40, § 15, were not cоmplied with in that the commission which had charge of the land made no determination that the land was no longer required for public purposes and consequently did not notify the council of any such determination.
As to the petitioners’ first contention, while it is the rule that “public lands devoted to one public use cannot be diverted to anоther inconsistent public use without plain and explicit legislation authorizing the diversion”
(Robbins
v.
Department of Pub. Works,
In this case there had been neither prior legislative authorization of a taking for a particular public purposе nor a prior public or private grant restricted to a particular public purpose. The deed through which the city
Thus, while a portion of Whitney Field was used by the city for a time as a playground, the city was under no compulsion to use the land either for that purpose or for any other particular purpose. Instead, Whitney Field was held by the city as part of its general corporate property and could be used for different purposes in the event of changes in the nature or the needs of the municipality. The cases relied on by the petitioners are in-apposite as the land in this case was not acquired for a limited purpose.
Conveyance of the land by the city is thus governed by the general provisions regulating the power to hold, lease and convey property fоund in G. L. c. 40, § 3 (made applicable to cities by G. L. c. 40, § 1), as limited by the conditions set out in G. L. c. 40, § 15, if applicable.
The petitioners’ second contention assumes the applicability of G. L. c. 40, § 15, and charges that the requirements of that section as to the proper procedures to be followed for the conveyance of land were not complied with by the city.
However, § 15, dealing with the procedures for abandonment of land or easements, applies only to “any land . . . taken for such city or town, otherwise than by purchase.” The city argues that § 15 is applicable only to the abandonment of land taken by eminent domain and that since Whitney Field was not takеn by eminent domain, the procedures outlined in § 15 were not applicable. The petitioners, in contending for the applicability of § 15, assume a broad reading of that section to
While the quoted language of § 15 could, if read literally, bear the meaning assumed by the petitioners, our consideration of the legislative history, of the subsequent statutory treatment, and of the apparent public policy or purpose of the section, leads us to the conсlusion that the word “taken” in § 15 is used in the more narrow, but traditional, sense of “taken by eminent domain.”
What is now G. L. c. 40, § 15, was originally Senate Bill No. 247, reported on April 1, 1901, by the Joint Committee on the Judiciary. 1901 Senate Doc. No. 247. That bill was a response by the Joint Committee to a petition for legislation authorizing cities and towns “to sell and convey lands takеn under the right of eminent domain,” and apparently was reported after consideration of two other bills on the subject. 1901 Senate Doc. Nos. 81 and 82. While the earlier two bills specifically referred to lands “taken under the right of eminent domain,” with the bill reported (No. 247) referring only to land “taken,” and adding the exception “otherwise than by purchase,” the major difference among the bills seems to have been the addition of two more conditions in No. 247: (1) that whenever a board or authority should have charge of the land taken, it would be required to notify the city council or selectmen that the land was no longer required for public purposes before any vote by thе council or selectmen on abandonment, and (2) that a minimum sum to be paid for the land be specified.
We believe that the Joint Committee used the word “taken” in No. 247 in its accepted and traditional meaning of “taken by eminent domain.” A comparison of the legislative history of the provision immediately preceding § 15, G. L. c. 40, § 14, authorizing the taking by
The subsequent statutory treatment of what is now § 15, through two major recodifications and one further updating, indicates a legislative understanding that this section logically and substantively belonged with those sections dealing with takings by eminent domain.
Although what is now § 15 had been too recently enacted to be included or discussed in the report of the Commissioners for Consolidating and Arranging the Public Statutes,
4
the supplemental report of the commissioners relative to statutes passed in 1901 recommended that the section be placed after a group of five other sections,
5
all using the unmodified words “take” or “taking,” and all clearly dealing with the power to take
The next major recodification, in 1921, continued to evince this understanding of the Legislature by again locating what had by then become § 15 after § 14, which consolidated and broadened prior sections on the taking by eminent domain or purchase of land by cities or towns. 7
Thus, the legislative history of G. L. c. 40, § 15, leads us to the conclusion that § 15 was initially intended, and hаs been subsequently considered, to be a logical part of a sequence of sections regulating the taking of land by eminent domain and the subsequent disposition of land so taken.
In addition, this legislative intention is confirmed by a consideration of the apparent purpose of § 15. “In construing a statute and arriving at the intention of the legislаture, not only must the words used be considered, but the purpose to be accomplished is also to be regarded.”
Nickels
v.
Scholl,
Finally, the petitioners pray that a writ of mandamus issue “ordering the city of Leominster to file forthwith a Writ of Entry in the Land Court and prosecute the same in a vigorous and diligent manner to recover legal title in said property.” We assume that the petitioners intended that by such a proceeding it would be established that Gagne had failed to perform the conditions in the deed from the city and that titlе had thereby reverted to the city.
If a reverter has occurred, the means which the city may use to obtain possession and to establish that title has reverted to it could well depend upon the circumstances. It may well be that litigation would not be required. On the other hand, resort could be hád to an action to recover land under G. L. с. 237, §§ 1-8, as amended by St. 1973, c. 1114, § 227, or to an action under G. L. c. 240, § 1. What procedure might be selected would be for the appropriate city officials to determine in the light of the existing facts. A court should not substitute its judgment as to the appropriate procedure to be followed.
Channel Fish Co., Inc.
v.
Boston Fish Mkt. Corp.
The trial judge made no finding as to whether the city or any of its оfficials had neglected or refused to perform
Order dismissing petition affirmed.
Notes
The use of the phrase “parklands, Great Ponds, reservations and kindred areas” in Robbins v. Department of Pub. Works, supra, at 331, is not helpful to the petitioners as it was apparently intended to includе only other types of areas which the Legislature has specifically identified with or restricted to a particular public use.
See St. 1921, c. 486, § 7.
See St. 1848, c. 237, § 1 (“An Act to authorize towns to take land for schoolhouses”); St. 1851, c. 186; St. 1855, c. 318; Gen. Sts. (1860) c. 38, § 38; St. 1869, c. 411, § 1 (“An Act to authorize cities and towns to take land for certain public uses”); St. 1874, c. 342; Pub. Sts. (1881) c. 44, § 48; St. 1894 c. 145 (“An Act to authorize the taking of land for public library buildings”); St. 1897, c. 299,. §§ 1,4; St. 1899, c. 379, §§ 1, 4 (“An Act relative to the taking of land by cities and towns”); St. 1900, c. 437; R. L. (1902) c. 25, §§ 45-50; St. 1915, c. 143; St. 1915, c. 263 (“An Act relative to the taking of land by cities and towns for municipal purposes”); St. 1918, c. 291, §§ 6, 8. Compare Nichols, Eminent Domain (rev. 3d ed.), § 6.1 [1], discussing the construction of “taken” in the United States and various State constitutions.
See Report of the Commissioners for Consolidating and Arranging the Public Statutes, vii (1901).
Supplemental Report of the Commissioners for Consolidating and Arranging the Public Statutes (1901) p. 32; § 15 was then numbered § 45A.
These five sections were numbered §§ 41-45; they were later renumbered, and, with the addition of what is now § 15, formed a sequence of six sections on the taking of land by cities and towns, R. L. (1902) c. 25, §§ 45-50.
Report of the Joint Special Committee on Consolidating and Arranging the General Laws, Vol. I, c. 40-1 (1920).