194 Mass. 296 | Mass. | 1907
Lead Opinion
The restricted covenants against incumbrances and of warranty contained in the defendant’s deed under which the plaintiffs derived their'title are independent, and a breach of either would give a distinct cause of action. The building and maintaining of a public sewer through a part of the granted premises did not constitute a breach of the first covenant, as the action of the public authorities was neither caused nor permitted by the grantor. Estabrook v. Smith, 6 Gray, 572, 577. West v. Spaulding, 11 Met. 556. Cole v. Lee, 30 Maine, 392, 397. But the covenant of warranty was broken by the constructive eviction caused by its maintenance, if the easement taken by eminent domain is derived from and supported by the title of the defendant. Comstock v. Smith, 13 Pick. 116. Raymond v. Raymond, 10 Cush. 134, 140. Smith v. Richards, 155 Mass. 79, 82. It therefore becomes important to consider whether upon its exercise the public acquired in the land a derivative or an independent title.
If -the State takes property by escheat or forfeiture it sue
But if the principle is applicable to real property seized in the exercise of the right of eminent domain, then if only a bare title is taken, which later is found to be invalid because a mistake has been made in ascertaining thé ownership, the condemnation must be repeated, or the public can be ousted by the true owner. Goodyear Shoe Machinery Co. v. Boston Terminal Co., ubi supra. The language used by this court when discussing the nature of the proceedings indicates more than a transfer of an existing title. Thus it was said in Brown v. Lowell, 8 Met. 172, 178, when speaking of the adjudication of the mayor and aider-men in laying out a way over private property, “ the latter appropriates the land to the public, and divests the right ofr the owner to the exclusive use and possession of it, from the time it is passed.” See also Commonwealth v. Boston & Lowell Railroad, 12 Cush. 254, 258; Drury v. Boston, 101 Mass. 439, 440; Monongahela Navigation Co. v. United States, 148 U. S. 312, 324. The probability of such an interference if a mistake has been made in the identity of the owner or owners is repugnant to the nature and scope of the right itself. To avoid such complications and to make the right immediately effective the appropriation of private property for a public use is strictly a proceeding in rem, and has been so defined by our decisions. Edmands v. Boston, 108 Mass. 535, 544. Appleton v. Newton, 178 Mass. 276,
This conclusion is further supported by the analogy of the sale of land for unpaid taxes where the purchaser, which may be the city or town, gets a new unincumbered title in fee by force of the lien of the taxing power, which cuts under all incumbrances or qualifying estates. R. L. c. 13, § 48. Harrison v. Dolan, 172 Mass. 395, 398. Emery v. Boston Terminal Co. 178 Mass. 172, 184. Hunt v. Boston, 183 Mass. 303, 306. Abbott v. Frost, 185 Mass. 398, 400. Hefner v. Northwestern Ins. Co. 123 U. S. 747, 751. Textor v. Shipley, 86 Md. 424, 438. McQuity v. Doudna, 101 Iowa, 144, 146. Independently of the theory of compensation for a compulsory surrender of his land by the citizen as distinguished from the equal benefit which the taxpayer gets as the equivalent of his tax, this power of organized government to levy a proportional tax for the purpose of raising public revenue is no more essential than the power, if necessity requires its exercise, to appropriate private property for a public use. If in one case
In the opinion of a majority of the court, the city of Boston not having acquired an easement “by, through or under” the defendant his covenant of warranty was not broken, and the ruling asked for in the defendant’s first request should have been given. West v. Spaulding, ubi supra.
Exceptions sustained.
Dissenting Opinion
In their opinion, a taking of property under the right of eminent domain is not an assertion or a transfer by the State of an independent paramount title, held by it against one who previously had acquired, through a grant from the government, that which purported to be a perfect title; but is merely an exercise of inherent sovereign power to -compel a holder of property to give it up and transfer it for a full consideration to the State, or to a representative of the State, that takes it by an involuntary proceeding because it is needed for a public use.
In their view the covenant is not to be construed narrowly, and the taker, in such a case, claims “by, through or under” the former holder of the title, who is paid for it by the taker.