US SUPREME COURT DECISIONS

The authority of a legislature to enact provisions for taking private property for public use rests upon its right of eminent domain, and it is a condition precedent to its exercise that the statute conferring the power make reasonable provision for compensation to the owner of the land. Unless the constitution of the state in which the lands are situated requires payment or tender of payment for land so taken for public use before the rights of the public therein can become complete, a statute which authorizes the taking of the property for public use and directs the ascertainment of the damages without improper delay and in a legal mode, and which gives the owner a right to judgment therefor, to be enforced by judicial process, is sufficient to transfer the title.

The Act of the Legislature of Massachusetts of June 1, 1867, c. 308, to enable the City of Boston to abate a nuisance, and for the preservation of the public health in said city, and which provided for the taking of certain private lands therein, and for their improvement, filling up, and complete draining, so as to abate an existing nuisance and preserve the health of the city, and which further provided for the payment of the cost of the lots so taken through judicial proceedings, was within the chanrobles.com-red

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constitutional power of the legislature of that state, and the fee in said lands, when acquired by the city, passed to it under the act, and the previous owners ceased to have any interest in them, but were only entitled to reasonable compensation, to be ascertained in the manner provided by the act.

The real estate the title to which is involved in the present writ of entry formerly belonged to Peleg Tallman, Sr., of Maine, who died on the 12th day of March 1840, having made a will which was duly admitted to record in that state, and a copy whereof was admitted to probate May 10, 1841, in Suffolk County, Mass. where the premises in controversy are situated.

The parcel of land in dispute, with other real estate, was devised to Henry Tallman, to hold for life, and at his decease to descend to his son Peleg Tallman, Jr. The devisee in remainder was born April 18, 1836, and died April 15, 1863, leaving two children, Frank G. Tallman and Peleg H. Tallman, also a widow, who subsequently intermarried with William A. Sweet, one of the plaintiffs in error.

The plaintiffs in error, who were the plaintiffs below and are citizens of New York, claim title under the will of Peleg Tallman, Sr.

The defendant, a citizen of Mass. claims title under proceedings instituted by the guardian of the devisee in remainder in the Probate Court of Suffolk County, Mass. by the order of which court, and in full compliance therewith, as is contended, the interest of Peleg Tallman, Jr., in certain real estate, including the lot in dispute, was sold in 1884, Henry Tallman, the owner of the life estate, becoming the purchaser. In the same year, the latter conveyed, with warranty, to Robert Knott, who purchased in good faith at the price of $2,900. In 1869, Knott conveyed by warranty deed to the defendant, Rechel, for the sum of $4,800 in cash or its equivalent. Rechel bought in good faith, for full value, without actual notice of any alleged defect in the title, and erected buildings and made improvements on the premises in dispute at a cost of $8,575.

The defendant also claims that the title to the lot in controversy chanrobles.com-red

Page 159 U. S. 382

was taken by the City of Boston in 1867, the title being at that time apparently in Knott under a statute of Mass. approved 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." Laws of Mass., 1867, c. 308.

By reason of its grade's being lower, and because it was incapable of being properly drained, the condition of the territory of which the lot in controversy was a part was such, during the period between the years 1860 and 1870, as to endanger the public health. Various plans having been suggested for the raising of the grade and for the proper drainage of the territory, the legislature passed the Act of June 1, 1867.

By that act, it was provided that the City of Boston "may purchase or otherwise take the lands or any of them in said city, with the buildings and other fixtures thereon," situated within a certain defined district, which included the lands here in dispute; 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,"

with

"a statement that the same are taken pursuant to the provisions of this act, which said description and statement shall be signed by the mayor of said city;"

that

"the title to all land so taken shall vest in the City of Boston, and if any party whose land is taken shall agree with the said city upon the damage done to him by the said taking, the same shall be paid to him by the said city forthwith."

It was made

"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."

§ 1.

Any person having an interest in the land taken was at liberty, within one year after the same was taken, as well in his own behalf as in behalf of all other persons having estates therein, to file a bill in equity in the Supreme Judicial Court, in the County of Suffolk, setting forth the taking of chanrobles.com-red

Page 159 U. S. 383

the complainant's land, the condition of the same in respect to its capacity for drainage, and whether the complainant claimed any, and what, damages against the city or the Boston Water Power Company, or other corporation or person,

"by reason of any and what wrongful act or omission by their causing a diminution in the value of his land at the time of said taking, and praying an assessment of damages against such parties,"

notice of such bill being given to the parties named therein as defendants, according to the course of courts of equity, and also public notice thereof to all persons in whose behalf such bill was filed to appear and become come parties thereto, if they thought fit to do so. It was made the duty of the court to prescribe how such public notice should be given, and what length of time should be allowed for appearing and becoming a party to the suit. Anyone interested who failed to appear and become a party within the time prescribed by the court was forever barred from recovering any damages on account of such taking. Each person appearing and becoming a party, having filed a written description of the land in which he claimed an estate, together with a plan thereof so as clearly to distinguish the same from all other lands, was required to declare what estate he claimed therein. If he claimed that the value of said lands at the time of the taking was lessened by any unlawful act or omission of the City of Boston, or of the Boston Water Power Company, or of any other corporation or person,

"so that the value of the land in its condition when taken would not be a just compensation for all the estate and rights of the party in and in reference to the same,"

he was also to state

"what such injury is, and how and by whom the same had been, or is, caused, and what right or title of the party is violated, and what amount of damages in gross is claimed by him, as compensation therefor, from each of the parties defendant."

§ 2.

Other sections of the act provided for the appointment of commissioners to hear the parties, after due notice, to assess the value of the land taken, and to make report to the court of their doings. Any party aggrieved by the report might except thereto, and have his exception heard as in a suit in chanrobles.com-red

Page 159 U. S. 384

equity, or might apply for the framing of proper issues to be tried by a jury.

The seventh section provides:

"When it shall be finally determined what amount of damages any party is entitled to recover against the City of Boston, or the Boston Water Power Company, or any other party defendant, a separate decree shall be entered accordingly and execution therefor shall be issued, without regard to the pendency of the claims of any other party or parties, or of other claims of such complainant."

The city council approved and spread upon its records an instrument reciting the act of 1867, and, stating that, pursuant to its provisions, the city "has taken, and by these presents does take," a certain parcel of land "belonging to Robert Knott" -- in whose name, as we have seen, that title then stood of record --

"to have and to hold the same to the said City of Boston, its successors and assigns, to its and their sole use and behoof, forever, agreeably to the provisions of the said act."

This instrument was approved by the mayor, who certified that "the lands described in said instrument were and are taken pursuant to the provisions of the said act." Within sixty days of the taking of the land, to-wit, on May 22, 1868, that instrument was filed in the Suffolk registry of deeds, and was fully recorded.

It was admitted at the trial that the city followed the provisions of the statute, and that the premises were held by the defendant under Knott and the city; also that the city forthwith performed the duty imposed on it by the statute at an immense outlay; that

"the grade of the land was raised, and the buildings thereon, the territory was laid out and filled, a complete and effective system of drainage was provided, the nuisance abated, and the value of the land was greatly enhanced. The lot in suit was filled in to a depth of several feet, the buildings were raised and underpinned, and the value increased."

Subsequently a settlement was had with the assignee of Knott in relation to the taking of the land, and, Knott having executed a release, the city conveyed, by deed of chanrobles.com-red

Page 159 U. S. 385

March 14, 1870, to the defendant, Rechel, the deed reciting that the property had been previously taken by the city under the above act of 1867.

It was also admitted that no compensation was ever paid to the plaintiffs by reason or on account of any proceedings by the city under the Act of June, 1867. And it was agreed that

"in 1869, a bill in equity was brought under the statute, reported in 109 Mass. 438, the case being Cobb v. Boston, on behalf of Cobb and all others entitled to have damages assessed for this taking; that this case was pending in the supreme court until the April term, 1882; that it was ordered by the court in this case that the time from December 23, 1869, to first Tuesday of April, 1870, be allowed to parties to bill; that notice was published in papers on said order, and that such persons as came in had their damages assessed under said bill. "

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