JACOB M. BURNES & others vs. METROPOLITAN DISTRICT COMMISSION & others.

WILKINS, J. This bill in equity by inhabitants and voters of the city of Boston, twelve in number, [Note p731-1] against the metropolitan district commission, The Wes Julian Construction Corporation, and the city of Boston, prays that "the court

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declare that it is unlawful" that certain park land be used for a public way until the consent of the inhabitants of the city has been obtained and, in the meantime, that the defendant commission and the defendant construction corporation be enjoined from entering upon the park land for the purpose of constructing a public way thereon. The defendants filed demurrers setting up, among other things, want of equity. Two demurrers give as a ground lack of standing entitling the plaintiffs to maintain the bill. The point was not taken that the Commonwealth was not made a party. See Kilroy v. O'Connor, 324 Mass. 238. Interlocutory decrees were entered sustaining the demurrers. The suit is here on report of the judge for the determination of the correctness of such rulings. G. L. (Ter. Ed.) c. 214, Section 30.

The allegations of the bill are as follows: Within the city of Boston in the area bounded on the north by the Charles River, on the east by Embankment Road, on the south by Back Street, and on the west by Muddy River, is situated a park. Title to the northern portion of the park is in the Commonwealth, and title to the southern portion, which lies between Back Street and the northerly edge of a concrete walk running east and west through the middle of the park, is in the city. The southerly portion is referred to in the bill as "Boston Park Land." All the park has "long since" been dedicated to the use of the public, and "Boston Park Land" has been appropriated to such use without interruption for a period of more than twenty years. Pursuant to directions received by the defendant commission under St. 1949, c. 262, entitled "An Act providing for the construction of a limited access way along the southerly side of the Charles River from Nashua Street near the Leverett Street circle to Soldiers Field Road in Boston including the construction of traffic interchanges at Charlesgate East and West and Charles and Cambridge streets and an underpass at Leverett and Nashua streets, Boston," the defendant commission proposes to locate a public way within the park and in part upon "Boston Park Land," and has caused the defendant construction corporation to commence work

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thereon within "Boston Park Land" notwithstanding that the consent of the city has not been obtained. No notice has been given by the defendant commission as "required" under G. L. (Ter. Ed.) c. 79, Section 5. The directions to the defendant commission contained in St. 1949, c. 262, do not require the public way to be located within "Boston Park Land," the only specification of location south or west of Longfellow Bridge being that the way shall be "along the Charles River" between termini neither of which is within "Boston Park Land." Under G. L. (Ter. Ed.) c. 79, Section 5, the plaintiffs, together with such other voters of the city as may desire to join them, "are entitled" -- so reads the bill -- to request in writing that any consent of the city be expressed by a vote of the inhabitants, but they are unable to file such request by reason of the "failure" of the defendant commission to give the notice "required" by Section 5. "It is unlawful for the respondent commissioners or any other authority to use said Boston Park Land or any part of said park for a public way as they propose to do unless and until such consent shall have been obtained, all as provided in said Section 5." The plaintiffs are without adequate remedy at law, and, unless the defendant commission and the defendant construction corporation are enjoined, the plaintiffs and all other members of the public entitled to the use of "Boston Park Land" will suffer irreparable injury.

The plaintiffs contend that the bill can be maintained for declaratory relief under G. L. (Ter. Ed.) c. 231A, Sections 1, 2, inserted by St. 1945, c. 582, Section 1. Upon demurrer, a bill stating a case within the declaratory judgment statute is good, and no question of discretion whether to grant relief is open. School Committee of Cambridge v. Superintendent of Schools of Cambridge, 320 Mass. 516, 520. Hogan v. Hogan, 320 Mass. 658, 662-663. Burn v. McAllister, 321 Mass. 660. Carlton Hotel, Inc. v. Abrams, 322 Mass. 201, 203. Booker v. Woburn, ante, 334, 336.

The general allegations as to the legal effect of Section 5 are not admitted by the demurrers. Stone, Timlow & Co. Inc. v. Stryker, 230 Mass. 67, 72.

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Dealtry v. Selectmen of Watertown, 279 Mass. 22, 26. Stockus v. Boston Housing Authority, 304 Mass. 507, 510-511. So far as material, Section 5 reads: "No portion of a common or park dedicated to the use of the public, or appropriated to such use without interruption for a period of twenty years, shall be taken or used for a public way . . . except with the consent of the city or town in which such common or park is situated after public notice . . .. Such consent shall be expressed by a vote of the inhabitants, if ten or more voters file a request in writing to that effect with the selectmen or aldermen within thirty days after the publication of the notice; in the absence of such request, consent shall be presumed."

From the allegations of the bill, as well as from the provisions of St. 1949, c. 262, it is manifest that it is for the Commonwealth itself the highway is to be constructed upon the park land. Takings by eminent domain are authorized in the name of the Commonwealth (Section 6). Damages therefor are recoverable from the Commonwealth (Section 12). A decision for the plaintiffs would involve acceptance of the proposition that by G. L. (Ter. Ed.) c. 79, Section 5, the Commonwealth has subjected its power of eminent domain to the consent of the city, to be expressed, in certain circumstances, by vote of the inhabitants. This proposition cannot be maintained. The taking of property by eminent domain is an attribute inherent in sovereign power. It cannot be contracted or bartered away. West River Bridge Co. v. Dix, 6 How. 507, 531-534. Pennsylvania Hospital v. Philadelphia, 245 U.S. 20, 22-24. Galveston Wharf Co. v. Galveston, 260 U.S. 473. See Central Bridge Corp. v. Lowell, 4 Gray 474, 480-482; Boston Elevated Railway v. Commonwealth, 310 Mass. 528, 551. It "must continue unimpaired in the State. It is impliedly reserved in every grant. It cannot be abridged so as to bind future legislation." Eastern Railroad v. Boston & Maine Railroad, 111 Mass. 125, 131. A fortiori, the power of eminent domain cannot be gratuitously restricted. Reichelderfer v. Quinn, 287 U.S. 315, 318-320. See Higginson v. Treasurer & School House Commissioners of Boston, 212 Mass. 583. It follows that G. L. (Ter. Ed.) c. 79, Section 5, cannot,

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and as a matter of interpretation does not, bar action by the Legislature, but has application to a taking or use of park lands by some inferior authority, as in Needham v. County Commissioners of Norfolk, 324 Mass. 293, 296-298. In general, it is well settled that the Legislature has power to divert park land, if acquired by a city by eminent domain or the expenditure of public funds, to another public use, even without the city's consent, its title being held only in its municipal capacity as an agency of government for the benefit of the public. [Note p735-1] Codman v. Crocker, 203 Mass. 146, 152-153. Wright v. Walcott, 238 Mass. 432, 435. Lowell v. Boston, 322 Mass. 709, 731.

Accordingly, if the bill could be maintained for declaratory relief, there should be a declaration that the use of the park land for a public way pursuant to St. 1949, c. 262, is lawful without any consent of the city or vote of its inhabitants. The demurrers, however, were sustained. This could have been on the ground that the plaintiffs are not entitled to bring this suit. The plaintiffs do not rely upon any personal right as distinguished from a property right. Compare Kenyon v. Chicopee, 320 Mass. 528. This is not, and does not purport to be, a petition under G. L. (Ter. Ed.) c. 40, Section 53, by not less than ten taxpayers to restrain the city from making an expenditure or incurring an obligation. The plaintiffs' alleged right is necessarily founded, at least in part, upon G. L. (Ter. Ed.) c. 79, Section 5. But, as has been seen, that statute has no application to the present situation. Assuming, but not deciding, that in an appropriate case ten voters and inhabitants of the city could properly seek a binding declaration whether there is a violation of Section 5, the plaintiffs, for the reasons hereinbefore expressed, have no such right here.

Interlocutory decrees sustaining demurrers affirmed.

Bill dismissed.