Welsh

175 Mass. 68 | Mass. | 1900

Holmes, C. J.

A doubt has been felt by some members of this court whether this report, which discloses only a ruling of law and no order or decree, is within the authority conferred upon the Court of Registration by the statutes. St. 1898, c. 562, § 14. St. 1899, c. 131, § 2. The former section provided that “ every order, decision, and decree ” of the Court of Registration should be subject to appeal. The latter adds that the Court of Registration “ after any decision or decree dependent upon the determination of questions of law may report such decision or decree for the consideration of ” this court. The argument is that “ decision ” in the earlier section meant something that could be appealed from, that is, a formal order or decree upon the record, and that it must mean the same thing in the amendment. But it seems to most of us that this is taking the Words in somewhat too strict a sense. It seems to us enough if the case is ripe for judgment or decree and the report shows that a decree would be entered were it not for the question of-law, and provides for a decree when the doubt upon that question is resolved. Under such circumstances the actual entry of the decree before sending the case up is a pure form. See Commonwealth v. Teevens, 141 Mass. 577. We agree that what we have pronounced sufficient is the least that will do, and that a question cannot be reported when it does not appear that an order or. decree will follow the decision as a consequence.

My brethren are of opinion that the ruling of the court should be sustained. Had the decision rested with me alone I probably should have ruled the other way, upon the ground that grammatically the limitation “for a period of ten years ” comes between the words “ shall not ” and “ erect,” and qualifies only a distinct restriction. But it seems to them that the structure of the whole paragraph is too confused for the argument from grammar to be of much force; that it is rather to be inferred, looking at the restrictions all together, that the time limitation was intended to apply throughout; that at least the words are so doubtfui that they should be taken most strongly against the grantor; and that the construction adopted is helped by the consideration that the other one would make the petitioner’s lot almost useless.

Decree accordingly.