Chapman, C. J.
The plaintiff alleges, and the parties agree, that the acts complained of in the bill purported to be done under the statute of June 1, 1867, entitled “ an act to enable the city of Boston to abate a nuisance existing therein, and for the preservation of the public health in said city.”
The first section describes a large tract of land situated in the city, and provides that the city “ may purchase or otherwise take ” the said lands, or any of them, with the buildings and other fixtures thereon; that the city shall, within sixty days from the time they shall take any of said lands, file in the office of the registry of deeds for the county of Suffolk a description of the lands so taken, as certain as is required in a common conveyance of lands, and a statement that the same are taken pursuant to the provisions of the act, which description and statement shall be signed by the mayor of said city; and the title to all land so taken shall vest in the city of Boston.
The question has been presented whether this language imports a title in fee simple. We think the words will bear no other fair and reasonable construction, and that the legislature' intended that such a title should be vested in the city.
[555]*555The act then provides that the city shall pay to the owner the damage done to him by the taking; and if the parties cannot agree upon the amount, it provides for ascertaining the damages by a bill in equity, giving to the owner the right of trial by jury.
It also provides for compensation to the owners of the land for any damage that may be occasioned to them by any act or omission of the Commonwealth, or its agents, or officers, or by the city of Boston, or by the Boston Water Power Company, by any acts or omissions that shall have diminished the value of the land at the time of taking it.
It provides that “ it shall be the duty of the city of Boston, forthwith to raise the grade of said territory so taken or purchased, laying out and filling up the same with good materials, with reference to a complete drainage thereof, so as to abate the present nuisance and to preserve the health of the city, and in nowise to affect injuriously the lands of the Commonwealth or its grantees in the Back Bay, or the system of drainage •therein.”
By the proceedings of the city government, which are referred to by the parties,' the ground of this legislation more fully appears. The territory is known as the Church Street District, and contains an area of about sixteen acres. The sewers first established there had an outlet into the empty basin in the Back Bay; and as the water in the basin did not rise more than two or three feet above low water, no difficulty was experienced in the drainage, although the grade of a large portion of the territory, extending as far as Dover Street, was not more than five or six feet above mean low water. As the population increased in the southerly part of the city, a large quantity of sewage matter which was discharged into the empty basin created a nuisance dangerous to the public health.
It was found necessary, therefore, to devise a system of drainage which would carry a portion, at least, of the sewage into deep water.
But, under the authority of the Commonwealth, the Back Bay has been filled up to a level considerably higher than that of the sea at high tide, and thus the artificial reservoir which [556]*556formerly existed with a surface very little above that of the sea at low tide, and into which this low tract of land could always be drained, was destroyed, and the drainage must now be completely subject to the changes of level created by the tides. The city authorities say that the only remedy was to raise the grade of the territory, and that the necessity for such a course has been clearly foreseen for a number of years. While we can conceive of other methods of drainage, it is obvious that they must be very expensive and imperfect, and that the legislature regarded the raising of the surface of the land as reasonably necessary in order to abate, an extensive nuisance which endangered the health of the city. No question is made by the parties in regard to the existence of the nuisance occasioned by the facts above stated, or in regard to its dangerous character, or as to the propriety or efficacy of the remedy by raising the grade of the territory. No suggestion is made that either the legislature or the city government has been influenced by any improper motives..
But the plaintiff contends that the provisions of the act, or at least a portion of them, are unconstitutional.
1. It is alleged that the legislature has assumed the power to declare the existence of a public nuisance on the land of the plaintiff, and that this is an exercise of a judicial power, because it charges him with an offence, and decides the question without giving him an opportunity to be heard, and then proceeds to deprive him of his land.
It is obvious that this view is not quite correct. The law' does not regard him as an offender in any sense; for it gives him a right to compensation, not only for all the damage occasioned by the taking of his land, but for its deterioration in value before the taking, whether by the acts or omissions of the agents of the Commonwealth, or of the city, or of the Boston Water Power Company. It regards him as an innocent person whose land is to be taken on the ground of public necessity, in order to protect the health of the city.
Upon the facts stated it is apparent that no indictment would lie against him, notwithstanding the nuisance; for it has bees [557]*557created by the acts of others which were beyond his control, and it is not in his power to remove it. The action of all the landholders in this large territory could not abate it, for it appears that there are public streets upon it; and, if they could remove it, there is no ground for requiring them to incur the expense. The plan adopted was to raise the grade to the height of eighteen feet above mean low water; the expense of which must be very great, and practically beyond the power of mere individual enterprise to accomplish. An additional act of the legislature authorized the city to lay railroad tracks through any of the streets of the city, and to maintain them so long as it might be necessary to enable them to transport earth and other material to fill up the territory and abate the nuisance. This shows that the work was regarded by the legislature as a great public enterprise for a highly important object, and one that needed to be prosecuted by legislative authority.
It is difficult to see how a judicial tribunal could have dealt with this matter under any known forms of proceeding; or how it could have adjudicated upon the extent of the nuisance; or have applied a remedy. Its procedure is not adapted to affairs of this general character, where there is no controversy between individual parties, nor any offence against the Commonwealth. But where the sanitary condition of a large city requires an interference with the real estate of a great number of persons, making expensive and essential changes in the condition and character of the land, a case is presented within that clause of the Constitution which confers authority upon the legislature to make “ all manner of wholesome and reasonable laws so as the same be not repugnant or contrary to this Constitution.” Part 2, c. 1, § 1, art. 4. In Hingham & Quincy Bridge & Turnpike Co. v. County of Norfolk, 6 Allen, 353, Bigelow, C.
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Chapman, C. J.
The plaintiff alleges, and the parties agree, that the acts complained of in the bill purported to be done under the statute of June 1, 1867, entitled “ an act to enable the city of Boston to abate a nuisance existing therein, and for the preservation of the public health in said city.”
The first section describes a large tract of land situated in the city, and provides that the city “ may purchase or otherwise take ” the said lands, or any of them, with the buildings and other fixtures thereon; that the city shall, within sixty days from the time they shall take any of said lands, file in the office of the registry of deeds for the county of Suffolk a description of the lands so taken, as certain as is required in a common conveyance of lands, and a statement that the same are taken pursuant to the provisions of the act, which description and statement shall be signed by the mayor of said city; and the title to all land so taken shall vest in the city of Boston.
The question has been presented whether this language imports a title in fee simple. We think the words will bear no other fair and reasonable construction, and that the legislature' intended that such a title should be vested in the city.
[555]*555The act then provides that the city shall pay to the owner the damage done to him by the taking; and if the parties cannot agree upon the amount, it provides for ascertaining the damages by a bill in equity, giving to the owner the right of trial by jury.
It also provides for compensation to the owners of the land for any damage that may be occasioned to them by any act or omission of the Commonwealth, or its agents, or officers, or by the city of Boston, or by the Boston Water Power Company, by any acts or omissions that shall have diminished the value of the land at the time of taking it.
It provides that “ it shall be the duty of the city of Boston, forthwith to raise the grade of said territory so taken or purchased, laying out and filling up the same with good materials, with reference to a complete drainage thereof, so as to abate the present nuisance and to preserve the health of the city, and in nowise to affect injuriously the lands of the Commonwealth or its grantees in the Back Bay, or the system of drainage •therein.”
By the proceedings of the city government, which are referred to by the parties,' the ground of this legislation more fully appears. The territory is known as the Church Street District, and contains an area of about sixteen acres. The sewers first established there had an outlet into the empty basin in the Back Bay; and as the water in the basin did not rise more than two or three feet above low water, no difficulty was experienced in the drainage, although the grade of a large portion of the territory, extending as far as Dover Street, was not more than five or six feet above mean low water. As the population increased in the southerly part of the city, a large quantity of sewage matter which was discharged into the empty basin created a nuisance dangerous to the public health.
It was found necessary, therefore, to devise a system of drainage which would carry a portion, at least, of the sewage into deep water.
But, under the authority of the Commonwealth, the Back Bay has been filled up to a level considerably higher than that of the sea at high tide, and thus the artificial reservoir which [556]*556formerly existed with a surface very little above that of the sea at low tide, and into which this low tract of land could always be drained, was destroyed, and the drainage must now be completely subject to the changes of level created by the tides. The city authorities say that the only remedy was to raise the grade of the territory, and that the necessity for such a course has been clearly foreseen for a number of years. While we can conceive of other methods of drainage, it is obvious that they must be very expensive and imperfect, and that the legislature regarded the raising of the surface of the land as reasonably necessary in order to abate, an extensive nuisance which endangered the health of the city. No question is made by the parties in regard to the existence of the nuisance occasioned by the facts above stated, or in regard to its dangerous character, or as to the propriety or efficacy of the remedy by raising the grade of the territory. No suggestion is made that either the legislature or the city government has been influenced by any improper motives..
But the plaintiff contends that the provisions of the act, or at least a portion of them, are unconstitutional.
1. It is alleged that the legislature has assumed the power to declare the existence of a public nuisance on the land of the plaintiff, and that this is an exercise of a judicial power, because it charges him with an offence, and decides the question without giving him an opportunity to be heard, and then proceeds to deprive him of his land.
It is obvious that this view is not quite correct. The law' does not regard him as an offender in any sense; for it gives him a right to compensation, not only for all the damage occasioned by the taking of his land, but for its deterioration in value before the taking, whether by the acts or omissions of the agents of the Commonwealth, or of the city, or of the Boston Water Power Company. It regards him as an innocent person whose land is to be taken on the ground of public necessity, in order to protect the health of the city.
Upon the facts stated it is apparent that no indictment would lie against him, notwithstanding the nuisance; for it has bees [557]*557created by the acts of others which were beyond his control, and it is not in his power to remove it. The action of all the landholders in this large territory could not abate it, for it appears that there are public streets upon it; and, if they could remove it, there is no ground for requiring them to incur the expense. The plan adopted was to raise the grade to the height of eighteen feet above mean low water; the expense of which must be very great, and practically beyond the power of mere individual enterprise to accomplish. An additional act of the legislature authorized the city to lay railroad tracks through any of the streets of the city, and to maintain them so long as it might be necessary to enable them to transport earth and other material to fill up the territory and abate the nuisance. This shows that the work was regarded by the legislature as a great public enterprise for a highly important object, and one that needed to be prosecuted by legislative authority.
It is difficult to see how a judicial tribunal could have dealt with this matter under any known forms of proceeding; or how it could have adjudicated upon the extent of the nuisance; or have applied a remedy. Its procedure is not adapted to affairs of this general character, where there is no controversy between individual parties, nor any offence against the Commonwealth. But where the sanitary condition of a large city requires an interference with the real estate of a great number of persons, making expensive and essential changes in the condition and character of the land, a case is presented within that clause of the Constitution which confers authority upon the legislature to make “ all manner of wholesome and reasonable laws so as the same be not repugnant or contrary to this Constitution.” Part 2, c. 1, § 1, art. 4. In Hingham & Quincy Bridge & Turnpike Co. v. County of Norfolk, 6 Allen, 353, Bigelow, C. J., says one of the main purposes of this clause was to vest in the legislature a superintending and controlling authority, under and by virtue of which it might enact all laws not repugnant to the Constitution of a police and municipal nature, and necessary to the due regulation of the internal affairs of the Commonwealth, In that case it was held to authorize a legislative act, taking, for [558]*558the purpose of laying out a highway, a turnpike and bridge and also the toll houses and lands under and around them which the corporation had obtained by purchase. It was further held that this was not the exercise of a judicial power.
Proceedings to ascertain and recover damages for property thus taken are properly referred to the judiciary. So, also, when land and other property of a turnpike or bridge corporation is taken by the legislature for the purpose of establishing a public highway, the legislature determines what property shall be taken, but may properly refer to the judiciary the duty of appointing commissioners as officers of the court to hear the parties interested and apportion among them the expense of the proceeding, and of rendering judgment on the report of the commissioners, and issuing process to enforce their judgment. Hingham & Quincy Bridge & Turnpike Co. v. County of Norfolk, 6 Allen, 853. Salem Turnpike & Chelsea Bridge Co. v. County of Essex, ante, 282.
In Varick v. Smith, 5 Paige, 137, it is said that the legislature is the sole judge as to the expediency of making police regulations interfering with the natural rights of citizens which are not prohibited by the Constitution, and also as to the expediency of exercising the right of eminent domain for the purpose of making public improvements, either for the benefit of the inhabitants of the state or of any particular portion thereof.
The court are of opinion that the objection stated above is not valid.
2. It is further objected that, even if it be conceded that a proper case exists for legislative action, yet the legislature has attempted to authorize a method of proceeding that violates the rights of the plaintiff.
The act provides that the city government may first take the land, and thereby transfer to the city, a title in fee simple without the consent of the owners. It is contended that, as the only object of the act is to abate a nuisance, the act ought only to have granted the power to occupy the land temporarily until the object of the act should be effected, and it should then be restored to the owners, with a provision that the benefit done to [559]*559the land should be applied in offset to the damages. It is true that the raising of the grade does not require an occupation of the land for a great length of time. ' When this work is completed, the nuisance will be abated, and the land will be in a condition to be occupied by private persons. But its condition will be greatly changed ; almost as much so as raising flats into upland. The former surface will be deeply buried under the earth that will have been brought upon it, and the changed condition is to be perpetual. If the old property is restored, the new property which has been annexed to it must go with it. This would be very unjust to the city, who have been compelled to incur the great expense of destroying the nuisance, unless the owner were required to make a reasonable compensation, which might be far beyond the amount of the damages to which he would be entitled.
It would be difficult to adjust the matter; and in many cases it might operate harshly upon the owner to compel him to take and pay for the improvements. On the whole, therefore, the plan of compelling the city to take the land in fee simple, and the owner to part with his whole title for a just compensation, would seem to be the most simple and equitable that could be adopted; unless there is some objection on the ground that a fee simple is more sacred than an estate for life or years, or than an easement of greater or less duration. We can see no ground for regarding one of these titles as more sacred than another, or for regarding land as more sacred than personal property. In Chase v. Sutton Manufacturing Co. 4 Cush. 152, a right granted to a canal company was held to remain after the canal ceased to exist, and to be transferable to other parties, to be used as fully as if it were held in fee simple. In Heyward v. Mayor, &c. of New York, 3 Selden, 314, land was taken in fee simple by the defendants under an act of the legislature for the purpose of enlarging a poor-house, and it was held that the act was constitutional. In Rexford v. Knight, 1 Kernan, 308, a similar doctrine was held in regard to land taken in fee simple for the Erie Canal. After the canal was changed to a new locality it was held that no title reverted to the original owner. In United States [560]*560v. Harris, 1 Sumner, 21, Judge Story treats a question of this character as depending on the construction of the legislative act rather than upon the constitutional power of the legislature. See also Harris v. Elliott, 10 Pet. 25.
Whether land be taken under the clause authorizing the making of wholesome and reasonable laws, or by virtue of the clause authorizing the appropriation of private property to public uses, it must in either case be left to the legislature to decide what quantity of estate ought to be taken in order to accomplish its purpose, and do the most complete justice to all parties. In the taking of other property no one would doubt that an absolute title might be acquired. If, for example, in time of war the government were to take timber for a ship of war, or horses for the army, and pay for them, no one would suppose that the owner could reclaim his property after the war was over; or that the government, having ceased to use it, could not sell it, and give a good title to it.
In taking land for highways, the legislature has not deemed it necessary to take more than an easement; but the easement is usually perpetual; and an absolute title to timber and trees is taken if they are not removed within a prescribed time. The Constitution provides for the protection of all private property, and it provides that, when the public exigencies require that the property of any individual shall be appropriated to public uses, he shall receive a reasonable compensation therefor. But it leaves the legislature, without any restriction, express or implied, to decide in each case as it arises, what constitutes such exigency; and, if land is to be taken, what estate in it shall pass. The legislature may also direct the transfer to be made to a corporation. Turnpikes, canals and railroads furnish examples of such grants. Aqueducts are often constructed by virtue of legislative acts which authorize towns or cities to taxe private property for the purpose. It is implied in the constitutional provisions referred to, that private property shall not be taken except for a public use. But there are no titles to property in the Commonwealth that are paramount to the Constiution and laws. On the contrary all property, real, as well as [561]*561personal, is held under the government, and subject to all its reasonable needs for public exigencies.
The court are of opinion that none of the legal rights of the plaintiff are infringed by the act in question, or by the proceedings of the city under it. Bill dismissed.