Page v. O'Toole

10 N.E. 851, 144 Mass. 303, 1887 Mass. LEXIS 169

• Court: Massachusetts Supreme Judicial Court
• Decided: March 24, 1887
• Status: Published

Opinion

Holmes, J.

The power given to the city of Boston and the town of West Roxbury by the St. of 1868, o. 223, § 1, to “ take or purchase land,” is manifestly given to the city and town severally, not jointly, if we read only the first part of the section. And when, after going on to provide that the “ city or town, as the case may be,” shall file in the office of the registry of deeds a description of the land so taken, the section concludes, “ and the title to all land so taken shall vest in said city or said town, as the case may be,” the purpose of the last words is not satisfied by construing them as merely a superfluous enactment that the title shall not be joint. They plainly have the same meaning that they would have had if the city or town had been mentioned alone.

If the power had been given to West Roxbury only, a provision that the title to all land so taken should vest in the town would mean, according to the common and proper use of language, the title in fee simple to the land itself, and not merely an easement in it. The words were so construed in Dingley v. Boston, 100 Mass. 544, 554, and the act Was held to be within the constitutional power of the Legislature.

If the purpose had been, as the plaintiff contends that it was, to define by what means or at what moment the town should acquire what rights it did acquire,, we should find some such word as “ thereupon ” before the provision as to the title vesting in the town, while the word “ all ” (“ the title to all land so taken ”) shows that the emphasis of the sentence falls, partly at least, on the extent of the rights acquired. We see no satisfactory distinction between this case and Dingley v. Boston.

Judgment for the defendant.