These cases arise out of the Authority's purported taking by eminent domain (in connection with the Boston extension of the Massachusetts turnpike) of the premises (the locus) formerly occupied by the Commonwealth's Irvington Street armory in Boston. The first case is a bill in equity filed by the Commonwealth in the county court on September 25, 1963, to have the Authority's purported taking (made on May 29, 1962) declared void, and for other relief. The second is the Commonwealth's petition under G.L.c. 79 (filed in the Superior Court on October 16, 1963) for the assessment of damages for the taking.
On October 16, 1963, upon completion of the original pleadings in the equity suit, it appeared that the armory had been demolished in 1962 and that the Authority was doing construction work on the locus. In such circumstances, injunctive relief was plainly inappropriate. Accordingly, the single justice stayed the equity proceedings until further order of the court, thus affording the Commonwealth opportunity to seek compensation by any suitable procedure. The Commonwealth thereupon at once filed its petition in the Superior Court for the assessment of damages.
On December 18, 1963, damages of $895,000
Shortly after the decision in Massachusetts Turnpike Authy. v. Commonwealth, 347 Mass. 524, the Authority filed on June 12, 1964, a motion to dismiss the Commonwealth's
On November 23, 1964, a single justice of this court reserved and reported to the full court the equity case (then still pending in the county court) upon amended pleadings and a statement of agreed facts. This statement incorporated by reference the report of material facts made by the Superior Court judge in respect of the petition under c. 79.
The Commonwealth had owned the fee in the locus since December, 1888. The armory was built in 1899, and was used as an armory until May 29, 1962, when the Authority made the purported taking. On August 20, 1962, the Armory Commission delivered to the Authority the keys to the armory and vacated the locus. The commission and the Authority have failed to agree upon the damages to be paid for the purported taking.
The principal issues in each case are (1) whether the Authority's purported taking of the armory was valid, and (2) if it was valid, whether the Authority must pay damages to the Commonwealth.
1. In Commonwealth v. Massachusetts Turnpike Authority, 346 Mass. 250 (hereafter called the Charles River decision), we considered whether the Authority had power to take certain land in and near the Charles River. That land, unique in various respects, was then being used by the Metropolitan District Commission for flood control work, among other purposes. This court affirmed an order overruling the Authority's demurrer to the Commonwealth's bill (brought in behalf of the commission) to enjoin as illegal a purported taking of these lands. We stated (346 Mass. 250, 254-255) that St. 1952, c. 354, § 5 (k), giving the Authority power to acquire "by ... eminent domain ...
We need not determine, however, whether (despite G.L. [Ter. Ed.] c. 79, § 5, and what was said in the Charles River decision) § 5 (k) authorized the original taking of the locus. If the taking was not authorized and was invalid (with the consequence that the Authority became liable for trespass) the Legislature now has specifically ratified the Authority's action in making this very taking. See St. 1962, c. 717, § 1.
As Chief Justice Shaw said (in a case discussing the taking by a railroad of land held by the Commonwealth for public purposes), "[T]he question is purely a question of intention, to be derived from the act of the [C]ommonwealth, as applied to the subject matter, and expounded in conformity with the established rules of construction. It is very clear, that the [C]ommonwealth, by an act of legislation, in express terms, may grant its lands, or any qualified interest or easement in land. It is equally clear, that the [C]ommonwealth may grant a franchise, including a power to lay out a way over its lands, upon such terms as the [L]egislature may prescribe, among which may be a condition, that the grantees shall pay a reasonable compensation for any land of the [C]ommonwealth which may be taken...." See Commonwealth v. Boston & Maine R.R. 3 Cush. 25, 43. That case held that, under the statute then being considered, "it was not the intention of the [L]egislature to grant the land of the [C]ommonwealth ... without compensation." In reaching this conclusion, weight was given (p. 46) to the circumstance that the "whole ... scheme of the enterprise is, that the entire outlay and all the disbursements, including the value of land necessarily taken, shall be advanced in the first instance by the... [railroad]; and the tolls, fares, and freights to be levied... are to be so adjusted, that the aggregate shall pay all expenses and afford a fair income to the proprietors upon
The circumstances considered in the Boston & Maine case are not precisely parallel to those now before us, for there a privately owned railroad was involved, whereas here a public authority made the taking. Nevertheless, the great similarities between the cases make the principles of the Boston & Maine decision controlling. See Commonwealth v. Boston Terminal Co. 185 Mass. 281, 287-288; Nichols, Eminent Domain (3d ed.) § 2.23, at p. 283, where it is said, "A state may expressly authorize the taking of its property by a private corporation and may even provide, when the acquisition is for a public use, that there need be no compensation for such taking. Such provision must, however, be affirmatively asserted in the authorizing legislation. Authority to take the state's property without any provision as to compensation implies a duty to make payment therefor."
The statute creating the Authority is St. 1952, c. 354, as amended. In the aggregate, the statutory provisions mentioned in the margin
The Authority relies greatly upon St. 1955, c. 693, § 1 (as amended by St. 1957, c. 657),
The Authority lays emphasis upon the words "in which case the previous law will continue to govern and no damages will be payable," and argues that this language supports the view that it is not bound to pay compensation to the Commonwealth. The original papers in the Newton-Weston case, however, show that this court then had before it no question concerning whether compensation would be payable by the Authority in the event of a taking by it of land owned by the Commonwealth in its governmental capacity. Indeed the Commonwealth in its brief (p. 9) there conceded that the Authority might "take certain public lands without paying damages therefor." In the light of the analysis of St. 1952, c. 354, made above (see fn. 3), this concession was improvident. The law existing prior to the enactment of St. 1955, c. 693, required the Authority to pay
3. In the equity case, a final decree is to be entered in the county court dismissing the Commonwealth's bill. The order denying the Authority's motion to dismiss the Commonwealth's petition under G.L.c. 79 is affirmed.