324 Mass. 293 | Mass. | 1949
This petition for a writ of certiorari was brought by the town of Needham to quash an order of the county commissioners dated April 2, 1946, purporting to "relocate” Highland Avenue in said town, increasing its width by about twenty feet, awarding damages amounting in all to $19,119 to more than ninety abutters for land taken, and ordering that all the expense of the "relocation,” including land damages, as well as expenses of construction, be paid by the town. Twenty-four abutters were allowed to intervene as petitioners.
In the Superior Court the judge made an order that judgment enter quashing the action of the commissioners.
This case is not here under the form of appeal provided by G. L. (Ter. Ed.) c. 213, § ID, inserted by St. 1943, c. 374, § 4. That section provides for an appeal from a "final judgment,” with substantially the effect of an appeal from a final decree in equity, but it makes no provision for an appeal from an order for judgment. See Shemeth v. Selectmen of Holden, 317 Mass. 278, 282; Reardon v. Director of Civil Service, 318 Mass. 173. The only statute under which an appeal from an order for judgment could be entertained is the appeal provided for proceedings at law by G. L. (Ter. Ed.) c. 231, § 96. This section permits appeal in three specified instances only, one of which is from "any order decisive of the case founded upon matter of law apparent on the record.” When concurrent jurisdiction over certiorari, mandamus and some other matters was first conferred upon the Superior Court by St. 1939, c. 257, § 1, inserting §§ 1A and IB into c. 213 of the Tercentenary Edition of the General Laws, express provision was made in § IB for reports to this court, and doubtless cases could also come here on exceptions under the very broad provisions of G. L. (Ter. Ed.) c. 231, § 113 (amended in respects not here material), but a question existed as to whether an appeal under c. 231, § 96, was open in such cases. See discussion in Codman v. Assessors of Westwood, 309 Mass. 433, 434-435. Subsequently, however, in a mandamus proceeding, this court entertained an appeal under § 96 from an order sustaining a demurrer. Clement v. Selectmen of Westwood, 316 Mass. 481. Such an order also constitutes one of the three instances in which an appeal can be had under § 96. We therefore assume that a certiorari proceeding could come here under § 96 on appeal from "any order decisive of the case founded upon matter of law apparent on the record.” But the order from which appeal is here attempted is not such an order. In the Superior Court the case was not heard solely upon the return of the respondents. The judge heard oral evidence bearing upon
Inasmuch, however, as the same final result (quashing of the order of the county commissioners) would have been reached if the case had come here on appeal from a final judgment under G. L. (Ter. Ed.) c. 213, § ID, inserted by St. 1943, c. 374,' § 4, we think it proper to state briefly the reasons which would have led us to that conclusion.
It appears from the return that among the lands taken were areas varying from six hundred thirty square feet to fourteen thousand three hundred sixty-three square feet from three school house lots, the lot on which stands the public library, the land in front of the town hall known as “Needham Common,” the land known as “Needham Heights Common,” and land of the “Memorial Park,” all belonging to the town of Needham. The town and the abutters who have intervened in the suit contend that the commissioners had no power to take these town lands, and therefore that the order of taking was invalid as a whole. The town and the interveners rely upon the principle that land appropriated to one public use cannot be diverted to another inconsistent public use without plain and explicit legislation to that end. Higginson v. Treasurer & School House Commissioners of Boston, 212 Mass. 583, 591. Eldredge v. County Commissioners of Norfolk, 185 Mass. 186. Byfield v. Newton, 247 Mass. 46, 57. Bauer v. Mitchell, 247 Mass. 522, 528. If we assume that strips could lawfully be taken from the school and library lots on the ground that
If the case were properly before us, we would feel obliged to hold that the failure to make a successful taking of the three parcels of common or park lands rendered the entire
Appeal dismissed.
“Such consent shall be expressed by a vote of the inhabitants, if ten or more voters file a request in writing to that effect . . in the absence of such request, consent shall be presumed.” G. L. (Ter. Ed.) c. 79, § 5.