Daniell v. Shaw

Specific Performance — Restriction imposed upon Land by Board of Survey of Boston — Constitutional Law. A restriction imposed upon land by the board of survey of the city of Boston, conformably to St. 1891, c. 323, as amended by St. 1892, c. 418, is an encumbrance within the meaning of a written agreement by which A. agrees to purchase the land of B., and B.- agrees to give him a good and clear title thereto free from all encumbrances.

Bill in equity, to compel the defendant to accept a deed of land, and otherwise perform the covenants of a written agreement: The bill alleged that the plaintiff, who was the owner in fee of a lot of land in Boston, on the southeast corner of Beacon and Aberdeen Streets, by an agreement dated September 27, 1895, agreed to sell the lot, and the defendant agreed to purchase the same, which was to be conveyed on or before October 3, 1895, by a good and sufficient warranty deed ” of the plaintiff, “ conveying a good and clear title to the same, free from all encumbrances and liens”; that on October 3, 1895, within the time specified by the agreement, the plaintiff tendered to the defendant a warranty deed of the lot in the required form, and with proper covenants; and that the defendant refused to accept the same. The answer alleged that the board of survey of the city of Boston, acting under the powers conferred upon it by St. 1891, c. 323, as amended by St. 1892, c. 418,* had placed an encumbrance or restriction on the lot, so that the plaintiff was unable to perform his agreement to convey said premises “ free from all encumbrances and liens,” in that the board had- filed in the office of the city surveyor a plan showing the location of Aberdeen Street as fifty feet wide, being an addition- to the present width of said street of five feet on each side of the-street, the present width of Aberdeen Street being only forty feet-;. that, in order to widen Aberdeen Street in accordance with the-plan, a strip of land five feet wide would be taken from the westerly side of the complainant’s land; and that the street had not been widened, and no proceedings had been begun to acquire title to this five-foot strip, or to widen the street. The plaintiff filed a special replication, admitting all the facts as alleged in the respondent’s answer, and alleging that § 4 of St. 1892, c. 418, and also that portion of § 7 of St. 1891, c. 323, ' which provides that “ the preceding sections shall not be construed ... to render said city liable for damages of any kind, except for making entries upon land and for placing and maintaining monuments and marks as provided in section six,” are unconstitutional, for the reason that, inasmuch as the owner is virtually deprived of the right to build upon his lot, and the money value of the lot is thereby greatly lessened, the statute thereby provides for the taking of private property for public use without compensation and without the owner’s consent, in contravention of the Constitution of Massachusetts, Declaration of Rights, Art. 10, and also deprives the owner of his property in contravention of Art. 12, and without due process of law, in contravention of the Fourteenth Amendment of the Constitution of the United. States, and that therefore the statute is to that extent void, and creates no encumbrance of the land agreed to be conveyed. Hearing before Holmes, J;, who reserved the case on the pleadings for the consideration of the full court. The city of Boston, although not a party to the record, was allowed to file a brief.