Eminent Domain. Parks and Park Commissioners. Equity Jurisdiction, To remove cloud from title.
Application of the principle that the taking of property by right of eminent domain is an act strictissimi juris and is valid only when the statutory requirements are performed with exactness.
Under R. L. c. 28, § 2, which provides that no land shall be taken by a board of park commissioners for a public park until an appropriation sufficient for the estimated expense thereof shall have been made in the manner provided in the statute, a taking of land by the park commission of a city before such an appropriation has been made, followed by an appropriation made by the city council in the manner required by the statute, is void and is not made valid by the subsequent action of the city council. Following Lajoie v. Lowell, 214, Mass. 8.
An attempted taking of land under the right of eminent domain which is void for lack of jurisdiction affords ground for maintaining a suit in equity by the owner of the land to remove the cloud from his title.
LORING, J.
This is a bill in equity to remove a cloud on the plaintiff's title to land in the city of Springfield. The case is here on an appeal from a decree in favor of the plaintiff. In their attempt to take the plaintiff's land the park commissioners of the defendant city reversed the order of proceeding laid down in the statute under which they undertook to act. The statute (R. L. c. 28, § 2) provides that no land shall be taken until an appropriation has been made. The park commissioners first undertook to take the plaintiff's land and afterward an appropriation was made by the defendant city. The defendant contends that the subsequent appropriation made the previous taking a valid one. That contention is concluded by the decision of this court in Lajoie v. Lowell, 214 Mass. 8. The defendant would have us lay that decision on one side because the statutory requirement there in question was enacted for the direct benefit of the landowner. We do not stop to consider whether the requirement of R. L. c. 28, § 2 (that the taking should not be made until the money had been appropriated) was not made in part for the benefit of the landowner. That fact is not of consequence. The doctrine on which Lajoie v. Lowell was decided is that the taking of property by eminent domain is an act strictissimi juris and is valid only when the statutory requirements are performed with exactness. When the railroad company in Lajoie v. Lowell attempted to take the plaintiff's land lying outside of its five rod location it had no jurisdiction to do so because it had not obtained permission from the county commissioners. After jurisdiction was obtained by the subsequent act of the county commissioners no taking was made. That doctrine applies in the case at bar.
There is nothing in the defendant's contention that the plaintiff has mistaken his remedy and should have brought a petition for certiorari. A taking which is invalid for lack of jurisdiction can be shown to be a nullity whenever it is set up in a court of law. See, for example, Lajoie v. Lowell, ubi supra; Whitten v. Haverhill, 204 Mass. 95. A fortiori such a taking can be made the subject of a bill to remove a cloud on title.
Decree affirmed with costs.