Merrymount Co. v. Metropolitan District Commission , 272 Mass. 457 ( 1930 )

Rugo, C.J.

The plaintiff prays by this suit in equity to have declared void a taking of land by the city of Quincy and a deed of the same land given by the city to the Commonwealth, and to enjoin the metropolitan district commission, acting in behalf of the Commonwealth, from entering upon and constructing a parkway upon the land taken. The several defendants answered to the merits. A final decree, reciting that the case came on to be heard and was argued by counsel, was entered dismissing the bill. The plaintiff appealed. The record consists of the bill and answers, the final decree and the appeal. There is no report of evidence and no finding of fact.

The alleged taking was made by order passed by the city council of Quincy and approved by the mayor on April 9, 1928, and a taking was recorded in the registry of deeds on May 2, 1928. The present bill was filed on September 16, 1929.

It well may be that the decree dismissing the bill was entered on the ground of loches of the plaintiff. This ■proceeding relates to the validity of a public undertaking, where parties must proceed with expedition if they desire to set it aside for informalities. Conners v. Lowell, 246 Mass. 279, 285. Byfield v. Newton, 247 Mass. 46, 58-59.

The taking by the city of Quincy was in substantial compliance with the provisions of the enabling statutes. The order of taking recited and declared that its purpose was “that said land may be conveyed to the Commonwealth of Massachusetts for the use of the Metropolitan District Commission, without cost to the Commonwealth, in order that a parkway or boulevard at least 60 feet in width may be laid out and constructed thereon, all in accordance” with St. 1927, c. 229, as amended by St. 1928, c. 59, and all other statutes pertaining thereto. This taking was duly recorded. The verbal differences between this order and taking and the words of the statutes are immaterial. The statutory authority was pursued with sufficient strictness and there was compliance with all its conditions. Lajoie v. Lowell, 214 Mass. 8. Excelsior Needle Co. v. City Council of Springfield, 221 Mass. 34, 37.

The conveyance to the Commonwealth was in substantial conformity to the terms of the statutes, even if it be assumed that this alleged defect affects the rights of the plaintiff. The grant was to the Commonwealth “acting through its Metropolitan District Commission.” The statute authorized a conveyance “to the Commonwealth for the use of the metropolitan parks district.” The grantee was the one named in the statute. The description of the use to which it was to be put could not be misunderstood and was adequate. G. L. e. 92, §§ 77-80.

The circumstance that the taking was made without an award of damages was equivalent to an adjudication that no damages were sustained. Broderick v. Department of Mental Diseases, 263 Mass. 124, 128. The city of Quincy was expressly authorized to pay all damages arising from a taking. St. 1928, c. 59, § 1.

If there were no damages, no appropriation was required under G. L. c. 40, § 14, and c. 43, § 30. Moreover this taking was not made under the last cited statutes but under St. 1927, c. 229, as amended by St. 1928, c. 59, which refers specifically to G. L. c. 79 for the procedure to be followed.

The city was empowered to take the land in fee. It was provided by said chapters 229 and 59 that the city of Quincy should convey to the Commonwealth a “strip of land sixty feet in width” and might acquire “such lands or interests therein as may be necessary to carry out the purposes of” the acts. Plainly this authorized a taking in fee. The metropolitan district commission is authorized to take land in fee. G. L. c. 92, §§ 79, 80. It manifestly was within the competency of the Legislature to authorize a taking in fee. Holt v. City Council of Somerville, 127 Mass. 408, 411. Higginson v. Treasurer & School House Commissioners of Boston, 212 Mass. 583, 591. It is not necessary to decide whether a taking in fee may not now be authorized by G. L. c. 79, § 1, in the light of its origin. By-field v. Newton, 247 Mass. 46, 56-57.

The contention that the taking was invalid because the city of Quincy did not make entry on the land within two years from the taking is without merit. The plaintiff brought this suit before the expiration of two years. The taking was not for an ordinary highway use but was in fee for a parkway or boulevard to be built by the Commonwealth. Gero v. Metropolitan Park Commissioners, 232 Mass. 389, 392. Burke v. Metropolitan District Commission, 262 Mass. 70, 73. Dakin v. Somerville, 262 Mass. 514, 516. There is no room in these circumstances for the application of that provision of G. L. c. 79, § 3, as to entry upon land within two years after a taking for purposes of a highway or of drainage.

Failure to give notice to one whose land is seized by eminent' domain does not invalidate the taking. G. L. c. 79, § 8. Byfield v. Newton, 247 Mass. 46, 55.

There is no merit in the contention that the deed by the city of Quincy should have run to the Treasurer and Receiver General. The express provision of St. 1927, e. 229, § 1, is that the conveyance shall be to the Commonwealth.

The suggestion by the plaintiff that its constitutional rights have been invaded requires no discussion. Every provision of law as to taking by eminent domain has been observed. Every right of the plaintiff has been conserved. Salisbury Land & Improvement Co. v. Commonwealth, 215 Mass. 371, 374. Duane v. Merchants Legal Stamp Co. 231 Mass. 113, 128. Opinion of the Justices, 237 Mass. 598, 609-612. Wright v. Walcott, 238 Mass. 432.

Decree affirmed with costs of appeal.