LYDIA N. RAYMOND vs. COMMONWEALTH.

BRALEY, J. While under the right of eminent domain private property cannot lawfully be taken by the sovereign power without awarding just compensation to the owner unless he has assented, yet the public purpose and time of such appropriation as well as the period in which any remedy for the recovery of damages is to be exercised are in its exclusive control, and failure by the landowner to take advantage of the remedy works a forfeiture of any claim for damages. Talbot v. Hudson, 16 Gray 417, 424. Haskell v. New Bedford, 108 Mass. 208, 214. Burnett v. Commonwealth, 169 Mass. 417, 425.

By the St. of 1899, c. 457, the height of buildings within a small area west of the State House was restricted, and St. 1901, c. 525, § 4, by amendment extended the restriction to include certain estates lying easterly of the building and grounds, among which was that of the petitioner. It was provided by the first named statute that petitions for damages should be brought within one year from June 2, 1899, the date of its passage, and this period was subsequently enlarged to three years by St. 1901, c. 417, but as the present suit was not begun until May 4, 1905, it cannot be maintained unless subsequent legislation either conferred a similar right or removed this limitation. Danforth v. Groton Water Co. 176 Mass. 118, 120. Upon the expiration of this limitation, then came St. 1902, c. 543, re-enacting the restriction as to the height of buildings which might be erected on the petitioner's estate, but this act granted a period of two years from June 28, 1902, when it took effect, within which a petition might be prosecuted. St. 1905, c. 224, subsequently extended this time for a further term of one year, and as these two statutes are to be construed together they make the limitation three years from the date of the enactment of St. 1902, c. 543. Danforth v. Groton Water Co. 178 Mass. 472. Dunbar v. Boston & Providence Railroad, 181 Mass. 383. Rogers v. Nichols, 186 Mass. 440, 443. It is manifest from the entire series of amendatory statutes so far as they relate to the remedy, that at least the petitioner and probably other owners of the estates which had been injuriously affected by the primary act as amended, inadvertently failed to take advantage of its provisions, and thus had lost their right to recover compensation. Geraghty v. Boston, 120 Mass. 416. To remedy what

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may have been deemed an injustice, and to enlarge and more specifically define the restricted area, instead of a separate act granting a further extension of time under the original condemnation, the Legislature by St. 1902, c. 543, § 1, again proceeded explicitly to condemn these estates, but with a provision not before found, that any betterment which had accrued by reason of the general improvement should be set off in the assessment of damages. That this was intended as a fresh taking is shown not only by the different provisions concerning the ascertainment of damages, but by the inclusion of other estates in the vicinity. St. 1902, c. 543, § 2. If the original taking for any reason had been considered of doubtful validity, or the provision for the payment of damages was considered as not being sufficiently favorable to the respondent, there can be no serious question that the Commonwealth could proceed independently under the subsequent statute without such action being treated as reviving the petitioner's right to recover under a former taking which had been barred by the lapse of time, as a second condemnation without a proviso to that effect did not revive the former right of action. See Crompton Carpet Co. v. Worcester, 123 Mass. 498, 504. But it is obvious there can be no entry upon the premises in the sense that when land is taken for the use of the public physical possession at some period in the proceedings becomes requisite as in the laying out of public ways, and where interest on the damages awarded or recovered by suit is to be computed only from the date of entry. Edmands v. Boston, 108 Mass. 535. Pegler v. Hyde Park, 176 Mass. 101. And to compensate the petitioner interest must be allowed from June 28, 1902, which is the date of the only taking under which the petition can be maintained. Old Colony Railroad v. Miller, 125 Mass. 1. Imbescheid v. Old Colony Railroad, 171 Mass. 209. Hay v. Commonwealth, 183 Mass. 294, 295, and cases cited.

If the question of the measure of damages is thus determined, the remaining inquiry concerns the title, and while the respondent makes no contention that the petitioner is not entitled to the entire sum absolutely, the judgment from which the appeal is taken provides for the appointment of a trustee under R. L. c. 48, §§ 17, 19, because the petitioner was held to be only a tenant

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for life. By the first clause of the will of Matthias P. Sawyer he devised to her the mansion house and land, which are the premises described in the petition, "for and during her natural life with the right to dispose of the same as she shall think proper from the time of her death." When this will was admitted to probate Rev. Sts. c. 62, § 4, now R. L. c. 135, § 22, provided that in a devise of lands all the estate of the devisor therein should pass, unless by his will it clearly appeared that he intended to convey a less estate. After this gift there is no devise over, and the language of the residuary clause, that within two years after the testator's death his executor should dispose of the "balance" of the estate to "The Massachusetts General Hospital," is inconsistent with a construction that he intended to include this property which previously had been given to his daughter. Baker v. Bridge, 12 Pick. 27, 31. Joslin v. Rhoades, 150 Mass. 301. Bassett v. Nickerson, 184 Mass. 169. But it is unnecessary to decide whether a fee passed, for in any event she took a life estate with a power of disposal by deed or by will. Kimball v. Sullivan, 113 Mass. 345. Kent v. Morrison, 153 Mass. 137, 139. Dana v. Dana, 185 Mass. 156. The phrases "during her natural life" and "from the time of her death," which were used to express his purpose, have no larger signification than if the testator had said that the estate was "to be kept and retained by her as long as she shall live," and this language was held in Todd v. Sawyer, 147 Mass. 570, where a similar devise was made to be insufficient to prevent the devisee from conveying an absolute title in fee. The power given being unrestricted the devisee could sell the property to whomsoever she pleased, and when received the proceeds became her individual property. Kent v. Morrison, ubi supra. She chose to convey to an intermediary upon a trust for her benefit, and he reconveyed to her. This was a valid execution of the power, for being the donee she could convey, if she chose, directly to herself in fee. By either form of conveyance she would become seised not as grantee of herself, but as the person designated by her in the exercise of the power conferred by the testator, from whom upon its execution she would derive title. Hall v. Bliss, 118 Mass. 554, 559, and authorities there cited. Look v. Kenney, 128 Mass. 284.

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The judgment awarded by the Superior Court having included interest from June 19, 1901, the date of the passage of St. 1901, c. 525, must be reversed, and judgment, without the appointment of a trustee, is to be entered for the petitioner in the sum of $32,500, with interest at the legal rate from June 28, 1902.

So ordered.