INHABITANTS OF WATERTOWN vs. HERMAN DANA & another.

BILL IN EQUITY, filed in the Supreme Judicial Court for the county of Middlesex on June 29, 1925, to enjoin the defendants from violating a building line alleged to have been established by the plaintiff, and to remove a structure built in violation thereof.

The defendants filed an answer on June 30, 1925, and on that day the suit was referred to a master with directions to report not later than July 8. The master reported on July 7. Material facts found by him are described in the opinion. There was no objection nor exception to the report. The suit was heard by Pierce, J., by whose order on July 8, 1925, there were entered an interlocutory decree confirming the report and a final decree granting the plaintiff the relief sought. The defendants appealed.

J. J. Kaplan, (E. C. Jenney & S. M. Child with him,) for the defendants.

R. G. Page, for the plaintiff.

RUGG, C.J. This is a suit in equity whereby the plaintiff seeks injunctive relief for violation of an alleged building line. The pertinent facts as to the establishment of the building line are that on May 5, 1925, the town clerk and clerk of the selectmen of the plaintiff sent notice to the defendants of the intention of the selectmen to establish a building line on the westerly side of Cross Street between Main Street and Pleasant Street, as shown on a plan on file with the town clerk, and that there would be a public hearing on May 15. The defendants were owners of land on that part of Cross Street. Similar notices were sent to other landowners presumably interested and a public notice was given by publication in a Watertown newspaper. A copy of a blue

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print of the plan was also sent to the defendants before the hearing. At the time and place appointed, hearing was had before the selectmen in accordance with the notice, at which the defendants were present and protested. On May 22, 1925, the selectmen took action, ordering that public necessity and convenience required the establishment of a building line substantially in accordance with the plan on file, and describing with accuracy a line ten feet westerly of the westerly line of Cross Street. Pursuant to lawful proceeding a town meeting was held in Watertown on June 15, 1925. One article in the warrant was, "To see if the Town will vote to ratify the action of the Selectmen in establishing a building line on the Westerly side of Cross Street, approximately ten (10) feet distant from the present building line as shown on plan . . . dated May 1, 1925 . . . and on file in the office of the Town Clerk . . . ." The vote on this article was to adopt the report of the selectmen, and by apt words it described the building line as ten feet westerly of the present westerly line of Cross Street. On June 18, an attested copy of article 8 of the warrant, of the report of the selectmen and of the vote of the town was recorded in the proper registry of deeds. On June 25, notice of all these facts was sent by the town solicitor to the defendants. The defendants on April 7, secured a building permit from the proper town officer to erect a block on the lot owned by them on the westerly side of Cross Street, signed a contract for the construction of the block on May 2, commenced excavation therefor on May 28, and between that date and June 15, pushed the work of construction as rapidly as possible and continued such construction after June 18.

It is provided by G. L. c. 82, § 37 (which has been accepted by the plaintiff) that "a building line not more than forty feet distant from the exterior line of a highway or town way may be established in the manner provided for laying out ways," with further provisions not here material. The procedure as to the laying out of a town way is prescribed by §§ 21-24, both inclusive, of the same chapter. In § 24 are these words: "If it is necessary to acquire land for the purposes of a town way . . . which is laid out . . . by

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the selectmen . . . or other officers of a town under this chapter, such officers shall within ten days after the laying out . . . of such town way . . . is accepted by the town, adopt an order for the taking of such land by eminent domain under chapter seventy-nine."

The establishment of a building line under § 37 constitutes an encumbrance upon land. It is in the nature of an easement for the benefit of the public. It was said in Curtis v. Boston, 247 Mass. 417, 424, respecting an order establishing a building line under that section, "the order operated, and was intended to operate, as a taking of private property for public use under the power of eminent domain." That the establishment of a building line is the creation of an encumbrance upon private property in favor of the public is apparent, not only from the terms of § 37 but from the tenor and scope of decisions which have arisen concerning the exercise of the power now set forth in that section. Zeo v. City Council of Springfield, 241 Mass. 340. Henry J. Perkins Co. v. Springfield, 248 Mass. 447. Greenfield v. Burnham, 250 Mass. 203. See Riverbank Improvement Co. v. Chadwick, 228 Mass. 242.

The establishment of a building line being a taking of property by eminent domain, the procedure prescribed for such taking must be followed. Within ten days after the vote of the town approving the adoption of the building line, the appropriate public board - in the case at bar the selectmen - must in accordance with § 24 of G. L. c. 82, adopt an order for the taking of the interest in land, specified in the vote, as set forth in G. L. c. 79. That order among other essentials must "contain a description of the land taken sufficiently accurate for identification": that is to say, the land affected by the building line must be so described. A copy of that order, signed by the appropriate public board or certified by their secretary or clerk, must be recorded in the registry of deeds of the county or district where the land lies, "within thirty days thereafter." G. L. c. 79, §§ 1, 3. Provision is made in G. L. c. 79, § 4, for the taking of registered land.

There was no compliance with this mandate of the statute

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in the case at bar. The selectmen did not adopt an order for taking within ten days after the acceptance by the town of the building line established by the earlier order of the selectmen. Consequently no copy of such order of taking was or could have been recorded in the registry of deeds. The record of an attested copy of the report of the selectmen, of the article touching that report in the warrant for the town meeting and of the vote of the town, were not the equivalent of compliance with the statutory requirements. The original report of the selectmen dated on May 22, containing, after recitals of notice and hearing, an order that the selectmen "are of the opinion that public convenience and necessity require that a building line be established, and that a building line is hereby established" as there set out in detail, is not in form, purpose or substance an instrument of taking. The design of that report was to comply with the requirements of G. L. c. 82, § 22, and to afford a basis for the vote of acceptance by the town, essential under § 23 to the establishment of the building line. The instrument of taking is a step which must follow the vote of acceptance by the town. It cannot precede that vote. The report, whatever its phraseology, cannot rightly be stretched to include, and to avoid the necessity of making, a taking in accordance with § 24.

It was the purpose of the commissioners to consolidate and arrange the general laws "to devise and recommend a simple and coherent system of eminent domain procedure, based on the present method . . . but smoothing it out . . . and providing the same procedure so far as possible for the taking of land for all purposes." Preliminary Report of the Commissioners, vol. 1, page 6. To that end it is provided in G. L. c. 79, § 45, "No real estate shall be taken for public use by the formal vote or order of any board of officers except under this chapter . . . ." The adoption under these circumstances by the General Court of G. L. c. 79, some of whose sections are new, may be presumed to have been in furtherance of a general purpose to provide a uniform system of procedure, so that everybody concerned will know how to take land by eminent domain and how to ascertain whether land or any interest therein has been seized under

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the power of eminent domain. Exceptions cannot easily be read into such a statute with such a history.

Doubtless under earlier statutes it might have been held that there was here a taking under the power of eminent domain. Beckford v. Needham, 199 Mass. 369. But we feel constrained to hold that, under the statutes at present governing procedure under eminent domain, the failure of the selectmen to adopt the requisite order of taking within ten days subsequent to the vote of the town and to record such order of taking within thirty days thereafter, all as pointed out in G. L. c. 82, § 24, and c. 79, §§ 1 and 3, invalidates the building line so far as it affects these defendants. Although this matter is not set out specifically in the answer, it is a matter of law apparent on the record. It is open to the respondents under an appeal from an adverse final decree. The question, whether upon the facts found by the master the decree is justified as matter of law by the bill and record, is raised by such appeal. French v. Peters, 177 Mass. 568, 572. Lyons v. Elston, 211 Mass. 478, 482, and cases there cited. Church v. Brown, 247 Mass. 282, 287. See Proctor v. Dillon, 235 Mass. 538, 540.

Final decree reversed.