Devine v. Lord

Hammond, J. If by the order of August 31,1897, the fee of the plaintiff’s land was taken, this action cannot be maintained, even if there was no eviction by or attornment to the city. O'Brien v. Ball, 119 Mass. 28. The first question, therefore, is whether the fee was taken. On May 28, 1897, the street commissioners gave notice that they were of the opinion that “ the public necessity and convenience require that Columbia Street ... be widened and laid out over parts of ” certain ways “ and private lands from Franklin Park to the Marine Park, as' a public way to be known as Columbia Road, . . . and that a part, or parts, of said public way be designated as a parkway, substantially as shown on a plan of said highway in the office of ” the board; and that they intended “ to take the action so required, under the provisions of” St. 1891, c. 323, and “ acts in amendment or addition thereto,” and of St. 1897, c. 394; and they appointed a time and place for a hearing. The order of August 31, 1897, after reciting that a public hearing had been had on the matter, determined that the public' necessity and convenience required, and the board ordered, that the said highway be widened and laid out under the pro [388] visions of the statutes named in the notice of May 28, over the streets and private lands thereinafter described from Franklin Park to Marine Park, “ as a public way to be known as Columbia Road,” according to a certain plan therein described. Then follows a detailed description of the road as thus widened and laid out. Then, under the authority conferred by St. 1894, c. 324, certain parts of the way are reserved for the use of street railways, and for trees, grass, and. planting. The order further proceeds as follows: “ And this board designate the following described parts of said Columbia Road to be under the authority of the Board of Park Commissioners of the city of Boston as a parkway, subject to the reservation ” made under St. 1894, c. 324, as above stated. Then follows a description of the parts to be placed under the control of the park commissioners. The order was an order to lay out a public way, and on familiar principles it took simply an easement, unless there is something peculiar in the statutes under which the board acted showing a different result. St. 1897, c. 394, simply authorized the street commissioners acting under St. 1891, c. 323, to lay out a public way over public ways and private lands from Franklin Park to Marine Park. Section 2 provides that certain parts of the way may be placed in the charge and control of the park commissioners. Section 3 provides that the cost of so much of the way as is to be under the charge and control of the park commissioners shall be considered as expenditures for public park purposes. ■ St. 1891, c. 323, makes certain provisions concerning the laying out, altering, and widening of streets in the city of Boston, but it does not change in any respect the nature of the easement taken; and it need not be further considered except to say that in 'certain respects it had restricted the powers of the street commissioners over the grade, etc., of certain proposed streets, and one of the purposes of St. 1897, c. 394, undoubtedly was to remove those restrictions as to this way. The defendant relies upon the second section of St. 1897, c. 394, which is as follows: “ Said board may designate a certain part or parts of said public way to be under the charge [389] of the board of park commissioners of said city as a parkway, and said board of park commissioners shall, after the construction .thereof, have the charge and control of such parkway, as if the same had been placed in its charge under the provisions of chapter three hundred of the acts of the year eighteen hundred and ninety-three.” She contends that the effect of that section is to take from the landowner the fee of so much of the way as is designated to be under the charge of the park commissioners. It does not appear that the plaintiff’s land was within that part, but as the argument upon both sides assumed that it was, we so assume in the consideration of the case. St. 1893, c. 300, § 1, provides that any board of park commissioners established under the authority of St. 1882, c. 154, as amended by St. 1890, c. 240, or of any special act, may “ connect any public park, boulevard, or driveway under its control, with any part of any city or town in this Commonwealth wherein it has jurisdiction, by selecting and taking any connecting street or streets, or part thereof, leading to such park, and shall also have power to accept and add to any such park any street or part thereof which adjoins and runs parallel with any boundary line of the same: provided, thát the consent of the public authorities having control of any such street or streets so far as selected and taken, and also the consent in writing of the owners of a majority of the frontage of the lots and lands abutting on such street or streets so far as taken, shall be first obtained.” Section 2 provides that they may improve such “ streets as they may deem best,” and may levy a betterment assessment. Section 3 is as follows: “ Such boards of park commissioners shall have the same power and control over the streets or parts of streets taken under this act as are or may be by law vested in them concerning the parks, boulevards, or driveways under their control.” Section 4 provides that when any street passes out of the control of the commissioners it shall revert to the proper corporate authorities of the municipality. By referring to St. 1882, c. 154, it will be found that by § 3 authority is given the commissioners to take land in fee for a public park, to lay out and improve the park, to make rules for the use thereof, with power to affix penalties for breach thereof, and generally to do all acts needful for the proper exe [390] cution of powers or duties granted to and imposed upon towns in these matters, provided that no land shall be taken or expense incurred until an appropriation is made by the town. And St. 1875, c. 185, the act establishing the park commissioners of Boston, has similar provisions. Without deciding whether there is a taking of the fee of the land in the streets selected and taken under St. 1893, c. 300, we are of opinion that there was no taking of the fee in those pEP’ts of Columbia Road designated under the order of August 31, 1897, laying out this road. It is an order to lay out a street, passed by the street commissioners, the board vested with the general power to lay out streets. It is certain that under the order there was no taking of the fee of the parts not under the charge of the park commissioners. Nor do the park commissioners have anything whatever to do with the parts designated for them until after construction. After the street is laid out and constructed it is placed under their charge and control for purposes of repair and supervision. Bearing in mind the rules of construction applicable to statutes authorizing the taking of private property, that the authority to take a fee must clearly appear either expressly or by fair implication, and that this was a taking for a highway, and that the provisions of the second section of St. 1897 may fairly be taken to mean simply that the park commissioners were to see to the care of the road, we think that only an easement was taken, and that the first request was rightly refused. The defendant was not evicted, but enjoyed the premises until April 1, 1898. Inasmuch as the fee was not taken, the plaintiff remained the owner of the fee, and the defendant, remaining in occupation, was liable as a tenant at sufferance. Emmes v. Eeeley, 132 Mass. 346. Pub. Sts. c. 121, § 3. It was of no consequence that elsewhere on the line somebody else might have been disturbed or evicted. That the fee did not pass from the plaintiff until the delivery of the deed, and that the plaintiff is not estopped by' anything in his deed to assert ■ the fact as against this defendant, is too plain for discussion. Exceptions overruled.