Slater v. Inhabitants of Manchester

Holmes, J. This is a petition under Pub. Sts. c. 176, to compel the respondent to bring an action to try the title to a part of Singing Beach in Manchester. The defence is that since the petition was filed the respondent has taken the land for a public [473] park. The judge before whom the case was tried found that, if he had any discretion in the matter, the taking ought not to prevent a decree for the petitioner, and made a decree that the respondent should bring an action, and should not set up any title acquired since the date of the petition. The facts are not before us. The question is whether, in any conceivable state of facts, the decree could be justified, or whether there is no such discretion if the respondent has title at the date of the decree. Doherty v. O'Callaghan, 157 Mass. 90. Merely by way of illustration, let us imagine the case of an owner of upland who always has enjoyed and has been believed by himself and others to own the adjoining beach, and yet who would have difficulty in showing a title by deed. Let us suppose that a controversy about the title arises with the town, and that the owner, of the upland files a petition like the present. If the town has to bring an action, the burden will be upon it to establish its rights. It might be very unjust to allow the town to defeat the petition by taking the land for public uses, and then to throw the burden on the owner to prove his damages. It has been held that a respondent cannot defeat the petition by a disseisin. Gurney v. Waldron, 137 Mass. 376. In a case like this the burden of proof may determine the substantive right, and there is no reason why this court should shut its eyes to the possibility. The judgment in the writ of entry is of no less importance after the taking than before, as it settles the question of the right to compensation. The statute says, in the broadest terms, that “ the court shall make such decree respecting the bringing and prosecuting of such action as may seem equitable and just.” To fix the time as of which the title shall be determined, when justice requires it, is within the language of the statute, and within the analogies of the law to which the making of terms for the bringing or defence of actions long has been familiar; for instance, in directing an issue out of the chancery, an order that the parties make such admissions as are necessary to raise the question to be determined; Dan. Ch. Pract. (5th Am. ed.) 1112; or the requirement to admit lease, entry, and ouster in an action of ejectment. We cannot say that the decree was wrong. See Gurney v. Waldron, 137 Mass. 376. [474] Our decision upon this point makes further consideration of the merits unnecessary. In view of the result, probably the petitioner would not desire to press bis objection to our dealing with the report at this stage. It seems to us proper to decide the question now. See Lowd v. Brigham, 154 Mass. 107 ; Pub. Sts. c. 157, § 18 ; Tompkins v. Wyman, 116 Mass. 558; Stone v. Houghton, 139 Mass. 175. Decree affirmed.