Appleton v. City of Newton

59 N.E. 648, 178 Mass. 276, 1901 Mass. LEXIS 760

Opinion

Knowlton, J.

The first question raised at the argument was whether the form of the taking, of the plaintiff’s land was sufficient to answer the requirements of the statute. This question must be answered in the affirmative. The instrument which was duly recorded in the registry of deeds, signed by the mayor and a majority of the board of aldermen and a majority of the common council of Newton, set forth that the city had taken the land, which was described by metes and bounds, and by a reference to a plan, and by giving the name of the owner, and stated that the taking was “ in part execution of and for the purposes set forth in the following acts of the Legislature of said Commonwealth : to wit: Chapter three hundred and forty-four of the acts of the year eighteen hundred and seventy-two, entitled ‘ An Act to Supply the Town of Newton" with Water ’ Chapter fifty-four of the acts of the year eighteen hundred and seventy-six entitled, £ An Act in Addition to an Act to Supply the Town of Newton with Water’ Chapter three hundred and two of the Acts of the year eighteen hundred and eighty-nine entitled ‘An Act to Provide an Additional Water Supply for the City of Newton ’ and all other Acts relating to supplying the City and Town of Newton with water: and for the purposes of the water supply.for the said City of Newton and an additional water supply therefor.”

There is no doubt that the taking was within the authority which the St. 1872, c. 344, as amended by the St. 1889, c. 302, purports to give. These two statutes being referred to as a foundation for the proceedings, the validity of the taking is not affected by the reference to other acts relating to the water supply of Newton which have no direct application to the taking of this land. Apart from the reference to the statutes for a statement of the purposes of the taking, an express statement in the words, “ for the purposes of the water supply for the said City of Newton and an additional water supply therefor,” is •sufficiently definite. The' filing of this paper in the registry of deeds, in pursuance of a former order of taking which was regularly passed by both branches of the city council and approved by the mayor, was a good taking to pass the title under the statutes. St. 1872, c. 344. St. 1889, c. 302. Ham v. Salem, 100 Mass. 350. Lexington Print Works v. Canton, 167 Mass. 341, 344 and eases cited. Burnett v. Boston, 173 Mass. 173. Rockport v. Webster, 174 Mass. 385.

The most important question in the case is whether the St. 1872, c. 344, is constitutional, inasmuch as it contains no provision for a formal notice of the taking to landholders, either before or after' the appropriation of the land. The determination of the question whether there is a necessity for the taking of the property in the exercise of the right of eminent domain lies with the Legislature as the representative of the sovereign power. On this question, the parties to be affected by the taking are not entitled to notice or a hearing. Holt v. City Council of Somerville, 127 Mass. 408. Old Colony Railroad, petitioner, 163 Mass. 356 and cases cited. All that is necessary is an adequate provision for their compensation, and this of course implies an opportunity to be heal’d on the amount to be paid. Declaration of Rights, Art. 10. U. S. Const. Amendm. Art. 14. Brickett v. Haverhill Aqueduct, 142 Mass. 394, 396, 397. Chicago, Burlington & Quincy Railroad v. Chicago, 166 U. S. 226, 241. An opportunity to be lxeax-d necessarily involves notice or the means of knowledge of the taking, before the expiration of the time within which they may have a remedy for the deprivation of their property.

It does not follow that personal service of a paper, or formal notice of any kind is necessary. A taking of land for a public use is strictly a proceeding in rem, the res being within the jurisdictioix of the State. In all such cases it is enough if there is such a notice as makes it reasonably certain that all persons interested who easily can be reached will have information of the proceedings, and that there is such a probability as reasonably can be provided for, that those at a distance also will be informed. Huling v. Kaw Valley Railway & Improvement Co. 130 U. S. 559, 564. Hagar v. Reclamation District No. 108, 111 U. S. 701, 711. McMillen v. Anderson, 95 U. S. 37. Davidson v. New Orleans, 96 U. S. 97. In re Union Elevated Railroad, 112 N. Y. 61, 75. Baltimore Belt Railroad v. Baltzell, 75 Md. 94. State v. Messenger, 27 Minn. 119. It is for the Legislature, within proper limitations, to say what means of knowledge will be enough to put upon a landowner the duty, within a prescribed time, to take measures to obtain his compensation if he wishes to save his rights. The Legislature in this case has given the petitioner three years after the taking of his land, within which to commence a suit, and has not required that any formal notice of the taking should be given him other than constructive notice by filing a paper in the registry of deeds. The precise question before us is whether it is so plain that the Legislature has failed to make reasonable provisions for giving landowners an opportunity to obtain compensation for land taken, that for this reason we should declare the statute unconstitutional. In fixing a time within which petitions for the assessment of damages may be filed, the Legislature assumed without making a special provision therefor, that landowners would have notice of the taking. There are good grounds for the assumption. In the first place, the statute authorizing the taking is a public law of which every one is presumed to have knowledge. The Legislature has provided for the publication and distribution of printed copies of statutes soon after their enactment. This statute is one, which from its nature, affects people and property only in a very small territory. The subject to which it relates is one of general public interest in the neighborhood affected by it, and it would hardly be possible that such legislation would be proposed and enacted without general knowledge among the people in that neighborhood that such a proposition was being considered. The method of taking the land is also by public proceedings requiring concurrent action of both branches of the city government, whose meetings are ordinarily public, and whose doings are a matter of public record as well as of general comment and discussion. After that, before the taking can become effectual, there must be constructive notice filed .in the registry of deeds, where the titles to land may be examined by anybody. Add to this the fact that the taking would be almost certain to involve a public investigation and inspection of the land itself before the desirability of it would be ascertained, and would usually be followed by physical possession and use, long before the expiration of the three years, and we see that under the provisions of the act in its application to the subject to which it relates, those interested would be almost certain to have knowledge of the proceedings long before the expiration of the three years mentioned in the statute.

In the present case, although the petitioner seems to have misunderstood the situation, it seems that with reasonable diligence he hardly could have failed to know that proceedings had been taken affecting his land, which made it important for him to take action for the preservation of his rights. In the summer and autumn-of 1889 he knew that the city authorities were making investigation on his land, boring holes and sinking iron pipes or driving wells a few hundred feet apart, with a view of finding a water supply to be added to that then in use by the city. On January 1,1890, he wrote to the city engineer a letter as follows: “ Dear Sir: I expected that in compliance with your promise you would let me know what report you made to the City Government of Newton in reference to my river front. I have heard nothing from you, & read that the Government is already considering the matter. I hope you will now kindly inform me just what you have recommended to be done.” On January 20, 1890, he received a reply in which the city engineer spoke of his report to the city government as follows: It “ had no special reference to action in regard to your land; but referred only to the land in the valley of the river in Newton and Needham. But the City Government decided to take immediate action and under the rights granted them by legislative enactment they have nominally taken a strip of your land fronting on the river. But their action is not of such a nature, that I see any difficulty with dealing with you in the manner which I suggested at our last interview. In fact I had proposed seeing you as soon as I could get my plans and surveys perfected. But the Winter has been so mild the work of surveying the meadows in the valley has been attended with great difficulty on account of the high water flooding the land. I will endeavor to see you in a few days or weeks at most as soon as the plans can be perfected.” The land in the valley of the river included the plaintiff’s land. The order taking the property was adopted by the city government and approved by the mayor on December 30, 1889, and the taking was recorded on February 26,1890. After the receipt of this letter the plaintiff made no inquiries, and neither knew or heard' anything more in reference to the city’s relation to his land until December, 1897, when he found the taking on file in the registry of deeds. The city has continued its iron pipes in the ground, and intends to connect them with its conduit which extends up the valley of the river on the opposite side, but it has not yet connected them. The plaintiff understood in 1890, or about that time, that the land of one Wiswell, next beyond his, had been bought and paid for by the city.

We are of opinion that the Legislature might assume that persons whose lands are taken would have such knowledge on the subject of the taking that the constructive notice by filing an instrument of taking in the registry of deeds would be all that is required to enable them to protect their rights within the three years allowed them for that purpose. A great many statutes have been passed in this Commonwealth, authorizing the taking of land by the right of eminent domain, with no provision for any other kind of notice than this. The constitutionality of none of them, so far as we know, has been questioned on this ground, and they have always been assumed to be constitutional. Ham v. Salem, 100 Mass. 350. Charlestown Branch Railroad v. County Commissioners, 7 Met. 78. Davidson v. Boston & Maine Railroad, 3 Cush. 91, 106. Chandler v. Jamaica Pond Aqueduct, 114 Mass. 575. Woodbury v. Marblehead Water Co. 145 Mass. 509, 511. Brock v. Old Colony Railroad, 146 Mass. 194.

The case last cited is an authority which very nearly covers the question now before us. So far as appears, the only notice that was given in that case that was not given in this, was a publication under the Rev. Sts. c. 39, §§ 46, 48, of notice of the application to the Législature for a special charter. That gave the plaintiff no knowledge beyond that possessed by the plaintiff in this case, for we understand that the present plaintiff knew of the authority to the city to procure an addition to its water supply. Chandler v. Jamaica Pond Aqueduct, 114 Mass. 575, was very similar to the present case. The constitutionality of a statute like that now before us seems to have been involved in the decision, although it was not argued, but was assumed both by counsel and the court.

We are of opinion that the statute is constitutional.

Bill dismissed.