Teasdale v. Newell & Snowling Construction Co.

192 Mass. 440 | Mass. | 1906

Hammond, J.

Inasmuch as the ground on which the bill was dismissed is not mentioned, the plaintiffs have the burden of maintaining that upon the facts which appear they have a right to a decree in their favor. Donovan v. McCarty, 155 Mass. 543. Moreover, since the evidence at the hearing was substantially all oral, the findings of the trial judge will not be disturbed unless plainly wrong. Dickinson v. Todd, 172 Mass. 183.

We have examined the evidence, and in view of the locality of the work, the number of horses employed, the attempts made by the respondent to secure stable room, the action of the board of health upon the petition made to them and the apparent attitude of the board upon the whole question of stable room, the propriety of doing the work with horses and the saving thus made in expense when compared with other methods of doing the work, a reasonable and proper view which the trial judge could have taken of the evidence was that the method adopted and carried out to procure stable room was reasonably necessary for the prosecution of the work. At least such a view of the evidence could not be set aside as clearly wrong, and it is to be presumed in support of the decree that the trial judge took that view. In the same manner it is to be presumed that the park commissioners considered it reasonably necessary that the stable should be erected upon the park land during the work to be done under the contract, and that under a vote of the board it was erected upon a spot selected by the engineer, and that this act was sanctioned by the commissioners.

Here then is a case where the commissioners have made a contract for the proper preparation of land taken for park purposes, and it is reasonably necessary to the performance of that contract that a stable should be placed temporarily upon the unfinished park, and such a stable has been erected under a vote of the commissioners and by their sanction.

R. L. c. 102, § 69, reads thus: “ Ho person shall erect, occupy or use for a stable any building in a city whose population exceeds twenty-five thousand unless such use is licensed by the board of health of said city, and, in such case, only to the extent so licensed.” Quincy, within whose limits the stable stands, is a city of more than twenty-five thousand inhabitants, and the erection and use of the stable has not been licensed by the board of health of that city. ,

The question is whether the section above quoted is applicable to this stable. The statutes under which the metropolitan park commissioners act contain elaborate provision for the establishment of parks or “open spaces for exercise and recreation.” St. 1893, c. 407. St. 1894, cc. 288, 483. The commissioners are authorized to acquire, by right of eminent domain or otherwise, and to “ maintain and make available,” such open spaces for such purposes, to take charge of the same, to make rules and regulations for the government and use of the same, and further, in general to “ do all acts needful for the proper execution of the powers and duties granted to and imposed upon ” them. St. 1893, c. 407, § 4. In a word, these parks are placed under the control of these commissioners acting as the agents of the State in exercising the authority of the sovereign over its own property. As such agents, performing the duty of making available for park purposes the land in question, it is found reasonably necessary for them to erect upon it and use this stable. Such an act must be regarded as needful in the proper execution of the powers which the State may exercise over its own property; and the general law made for the regulation of citizens must be held subordinate to this special statute regulating the use of the property of the State unless there is express provision to the contrary. It is not to be presumed that the Legislature intended to give to the local licensing board the authority to thwart the reasonably necessary efforts of the park commissioners to perform their duty as agents of the State.

Decree affirmed.