238 Mass. 432 | Mass. | 1921
This is a bill in equity by ten taxpayers under R. L. c. 25, § 100, now G. L. c. 40, § 53, to restrain conduct of the Industrial Commission of Cambridge alleged to commit that city to obligations unauthorized by law.
The pertinent facts are: The city of Cambridge was authorized by St. 1892, c. 341, and St. 1893, c. 337, to acquire land for public parks. Under that power and pursuant to a general plan for the development of a parkway and riverside reservation along the Cambridge bank of the Charles River, the city took by eminent domain and purchase about one hundred and thirteen and six tenths acres (exclusive of the land here in question) extending on the river front approximately four miles. That general plan has been carried out (except as to the land here in question) and stretches from the Cambridge Bridge, on or near the site of an earlier structure called the West Boston Bridge, to the Cambridge Hospital in the westerly part of the city, at an expense of about $2,000,000. The land in question, called " The Front,” contains three hundred and forty-nine thousand eight hundred and twenty-eight square feet of land bounding easterly on the Charles River one thousand seven hundred and fifty-nine feet, northerly on Lechmere Canal, westerly on a street and southerly on land of private owners. It was taken by eminent domain in 1894 and the owner within a few days thereafter also made conveyance thereof to the city, which became vested with the title in fee. A sea'wall has been built and the land has been filled to grade, each costing slightly in excess of $50,000, the total expense including original cost being nearly $150,000. The land has not been further worked for park purposes. It would cost now from $10,000 to $30,000 to-adapt it for park uses, depending upon the extent of development. Since “ The Front ” was acquired, the Cambridge Bridge has been built at great expense, connecting Boston and Cambridge, having been opened for use in 1909. It is a substantial structure of fine architectural design. From this bridge on the Boston side of the Charles River, up stream for a considerable distance, there is an attractive river bank park under the jurisdiction of the Metropolitan Park Commission. “ The Front ” and the present parkway system of Cambridge are separated by three lots of land,
It is to be observed that no one having a special or private stake in the matter is objecting. No one complains on the ground of having paid a betterment assessment for the laying out of this land as a park. The proceeding is wholly under the statute by those having a public interest as taxpayers.
There are certain fundamental principles too well settled to be open to question. Moneys raised by taxation and all public funds-can be expended only for public purposes. Private property cannot be taken by eminent domain or by contract of purchase except for a public use. It cannot be so taken or purchased from one person or set of persons with the design of handing it over directly or indirectly to another person or set of persons for their private advantage. The taking of private property except for ends which are of a public nature, even though accompanied by full compensation to the owner is contrary to fundamental principles of American jurisprudence and violative of the essential character of a free government. Legislation designed or framed to accomplish the
The taking of land for a public park is for a public use. To that end title may be taken in fee. Land acquired by a city or town by eminent domain or through expenditure of public funds, held strictly for public uses as a park and not subject to the terms of any gift, devise, grant, bequest or other trust or condition, is under the control of the General Court. It may be transferred to some other agency of government or devoted to some other public use by legislative mandate. The power of the General Court in this regard is supreme over that of the city or town. When title in fee is acquired in the land by the municipality for such a public use, there is no right of reversion to the original owner. He has been divested of every vestige of title when he parted with the fee. Higginson v. Treasurer & School House Commissioners of Boston, 212 Mass. 583. Stewart v. Kansas City, 239 U. S. 14, 16.
The question never has arisen for express judicial determination in this Commonwealth, whether land once taken in fee for a public use can be sold and devoted to private uses when through the lapse of time or by reason of changed conditions and under legislative authority it has been decided that such land is no longer needed for public uses.
Since 1901 there has been a general law authorizing the abandonment of lands, easements and other rights taken by cities and towns otherwise than by purchase, upon compliance with certain conditions set forth in the statute. G. L. c. 40, § 15. The counsel for the defendants has cited numerous special statutes authorizing cities to sell certain lands acquired or held for park purposes. None of these acts has been attacked in this court.
The question has arisen in other jurisdictions, "where it has been
Stating the proposition broadly, the taking in fee of private lands for a public use, the achievement of the aim contemplated, the complete accomplishment of the public purpose designed and the subsequent sale of the land so taken for private improvement is a recognized and valid exercise of the power of the General
On principle there is no reason why land taken and used for a municipal building of any sort or other public function may not, when the need is at an end, under legislative authority be sold or -otherwise, with due regard to the public interests, be devoted to private purposes.
The facts in the case at bar warrant the inference that time and ■change have brought into existence new circumstances affecting the wisdom of the use of “ The Front ” for park purposes. A quite different situation confronts the city now from that facing it in 1894 when the taking was made. The statutes under which the -defendants are proceeding to act are equivalent to a determination "by the General Court that the reason for the public use no longer prevails. No other rational inference can be drawn from the specific authority to the city to alter uses of the property and to lease it for private business.
Every intendment must be made in favor of the constitutionality of an act of the General Court. Perkins v. Westwood, 226 Mass. 268. We think it cannot be said that the series of statutes involved in the case at bar are a mere cloak for the transfer of property from one individual to another through the exercise of eminent domain. It reasonably might be decided that the changes in "the neighborhood of “ The Front,” arising from development of other parks, the building of new bridges, the general movement of business and the encroachments of commercial, activities in the vicinity, render it more feasible to give up than to continue the use of the land in question to public purposes at the expense to the public treasury now demanded for its development. The relevant facts distinguish the case at bar from Salisbury Land & Improvement Co. v. Commonwealth, 215 Mass. 371, a case where the statute plainly was adapted for taking land from one private owner under
The requirement of acceptance of Spec. St. 1917, c. 223, by the city council before it should become operative is a common provision in statutes chiefly affecting a particular municipality. Its validity is not open to doubt. Graham v. Roberts, 200 Mass. 152, 157. Barnes v. Mayor of Chicopee, 213 Mass. 1. Cunningham v. Mayor of Cambridge, 222 Mass. 574, 577.
Although land for a public park is for a general public as distinguished from a proprietary use, there is no fundamental infirmity in permitting the city council to pass the decisive vote altering the use of the land in question from public to private purposes. That comes within the principle illustrated by Commonwealth v. Slocum, 230 Mass. 180, and the numerous cases there reviewed. Since the expense of the original acquisition of the land and of its filling and the construction of the sea wall was 'borne by Cambridge, there is manifest public justice in allowing the final word as to the alteration of its use to be pronounced under legislative authority by the official representatives of that city.
The income received from the rental of the land must be devoted solely to public uses. Duffy v. Treasurer & Receiver General, 234 Mass. 42, 50.
The leasing of the land rather than the sale of it, while unusual in practice, does not appear to involve constitutional objections. None have been presented in argument. If a sale would be valid when authorized, the conveyance of a lesser estate would seem to be within the scope of the same principle.
Bill dismissed.