Chap. 308 AN ACT TO ENABLE THE CITY OF BOSTON TO ABATE A NUISANCE

City may take lands and property.

tion and state

of deeds.

EXISTING THEREIN, and for THE PRESERVATION OF THE PUBLIC
HEALTH IN SAID CITY.

Be it enacted, &c., as follows:

SECTION 1. 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 and lying within Bounds defined. the district bounded on the north-west by the north-westerly line of Columbus Avenue, extended to Church Street; on the north by the line of the southerly side of the passenger station of the Boston and Providence Railroad Corporation, and the same extended to the westerly line of Church Street; on the east by Pleasant Street; on the south-east and south by Tremont Street and the Boston and Worcester Railroad; Shall file descrip- and on the west by Ferdinand Street. Said city shall, within ment in registry 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; and 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; and 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 City shall raise by the said city forthwith. And it shall be 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, and in no wise to affect injuriously the lands of the Commonwealth or its grantees in the back bay, or the system of drainage therein.

Mayor to sign.

Title to vest in city. Dàmage, how may be paid.

grade of territory.

Person entitled in land taken may file bill in equity in S. J. Court for dam

ages against city,

Water Power Co.

or other party.

SECTION 2. Any person entitled to any estate in any part of the land so taken, may at any time within one year from the time when the same shall be taken, as well in his own behalf, as in behalf of all other persons having estates in the land so taken, file a bill in equity in the supreme judicial court, in the county of Suffolk, setting forth the taking of the complainant's land, and the condition of the same in respect to its capacity for drainage, and whether the complainant claims any and what damages against the city of Boston, or the Boston Water Power Company, or any 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 assess

notice to defend

in interest.

notice and
for appearing.

barred.

scription and

ment of damages against such parties. And upon the filing Court shall cause of such a bill, the said court shall cause notice of the pen- ants and public dency of said bill to be given to the parties named therein notice to others as defendants, according to the course of courts of equity, and also public notice thereof, to all persons in whose behalf such bill shall be filed, to appear and become parties thereto, if they shall think fit to do so. Said court shall prescribe shall determine how such public notice shall be given, and what length of for appear time time shall be allowed for appearing and becoming a party to such suit. Any party failing so to appear and become a Party failing to party within the time prescribed by the court, shall be for- appear shall be ever barred from recovering any damages on account of such taking. Each person so appearing and becoming a party, Person appearshall file a written description of the land in which he claims ing, to file dean estate, together with a plan thereof, so as clearly to dis- plan. tinguish the same from all other lands, and shall also declare what estate he claims therein. If he claims that the value Claims for injury by taking; stateof said lands at time of taking the same was lessened by any ment required. unlawful act or omission of the city of Boston, or the Boston Water Power Company or 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, such party shall also 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.

point commis

SECTION 3. Upon the expiration of the time allowed for Court shall apappearance to the said bill, the said court shall appoint three ioners: city commissioners, who shall receive such compensation as the shall pay. said court shall fix, to be paid by the city of Boston.

SECTION 4. It shall be the duty of the said commissioners, Duties of comafter due notice, to hear each of the said parties, including missioners. the said city of Boston, and the said Water Power Company, and other parties named as defendants, and to assess the present value of each parcel of the said land claimed by any party so appearing, with its capacity for drainage in its present condition; and the amount in gross, if any, of damages done to such parcel of land by reason of any unlawful act or omission of the city of Boston, or the Water Power Company, or any other party defendant, affecting its value. at the time of said taking.

SECTION 5. Said commissioners, or the major part of Shall report dothem, shall make report to the said court of their doings, and, upon re

ings to court,

quest, evidence and when requested by any party, of the evidence touching any exception intended to be taken by him..

for party.

Party aggrieved, how may proceed.

Decree and execution to be given free of other pending claims.

Costs, if party elect jury.

Act not to exempt city from

wise.

SECTION 6. Any party aggrieved may either except to the report of the said commissioners, and have the exception heard and determined by the said court, according to its. course as a court of equity, or may apply to the said court to have proper issues framed and tried by a jury, and proceeded in as in other cases of issues ordered by the said court. And on the trial of any such issue, the report of the commissioners respecting its subject-matter shall be prima facie evidence of what is therein stated.

SECTION 7. 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.

SECTION 8. If any party shall elect a jury, he shall recover his legal costs, if the award of the commissioners shall be altered in his favor; otherwise he shall be liable for the legal costs of the other party or parties.

SECTION 9. Nothing in this act shall be construed as liabilities other exempting the city of Boston from any obligation it would otherwise be under, to make compensation to the owners of lands abutting on or near to the territory described in the first section of this act, for any injury it may do to such lands in any acts of raising, filling or draining said territory or any part thereof.

Claim of party against state to

SECTION 10. If any party shall allege that the value of be in nature of his land at the time of the said taking had been diminished petition of right. by any act or omission of the Commonwealth or its agents or officers for which diminution the Commonwealth ought to make him compensation, he shall make the allegations relating thereto in a separate article of the bill, in the nature of a petition of right against the Commonwealth, and the court shall cause notice thereof to be served upon the attorAttorney-general ney-general. And the attorney-general shall appear and may make a separate answer thereto; and the commissioners appointed by the court to assess damages under this act, are hereby empowered to make a separate report of the damages, if any, caused to any party by any act or omission, for which the Commonwealth is responsible, and shall, at the request of the attorney-general, report the evidence, together with the grounds of their opinion why the Commonwealth ought to pay the same. And it shall be the duty of the supreme judicial court to instruct the said commissioners on

to appear. Commissioners appointed by court to report.

instruct commis

any matter of law involved in their decision, at the request S. J. Court to of any party or of the commissioners, and the proceedings sioners in law, shall be conformed as nearly as possible to those in suits in on request. equity. And the final report of the commissioners on the Report to be filed subject of the claims upon the Commonwealth, shall be filed the governor. in court in the cause, and a duplicate thereof transmitted to his excellency the governor. And if in the opinion of the Court may certicourt, it is reasonable that the Commonwealth bear any part of the costs or expenses, the same shall be certified with the said report.

in court and with

fy costs.

orders and decrees to enforce

SECTION 11. Said court may make all orders and decrees Court may make necessary to carry into full effect the intent of this act, and may at its discretion, at any stage of the proceedings, order act. a party to give security for the payment of damages or costs. SECTION 12. All legal costs which shall accrue in proceed- Costs accruing, ings under this act, not otherwise provided for, shall be paid as the said court shall order.

SECTION 13. This act shall take effect upon its passage.
Approved June 1, 1867.

AN ACT IN ADDITION TO AN ACT TO AMEND CHAPTER TWO HUNDRED
AND NINETEEN OF THE ACTS OF THE YEAR EIGHTEEN HUNDRED
AND SIXTY-SIX, CONCERNING THE MILITIA.

Be it enacted, &c., as follows:

how paid.

Chap. 309

pointed.

In addition to the brigade staff officers now authorized by Engineer of brilaw, there shall be one engineer of brigade with the rank of gade to be apcaptain, to be appointed and commissioned in manner now provided for other brigade staff officers.

Approved June 1, 1867.

AN ACT IN ADDITION TO AN ACT MAKING APPROPRIATIONS TO MEET
CERTAIN EXPENDITURES AUTHORIZED THE PRESENT YEAR, AND FOR
OTHER PURPOSES.

Be it enacted, &c., as follows:

Chap. 310

SECTION 1. The sums hereinafter mentioned are appro- Appropriations priated to be paid out of the treasury of the Commonwealth authorized. from the ordinary revenue, except in cases otherwise ordered, for the purposes specified in certain acts and resolves of the present year, herein cited, and for other purposes, to wit:

In the resolve, chapter one, in favor of Increase N. Emer- I. N. Emerton. ton, the sum of fifty-two dollars.

ring Pond Plan

In the resolve, chapter two, in favor of the treasurer of Treasurer Herthe Herring Pond Plantation, a sum not exceeding five hun- tation. dred dollars, payable upon properly approved vouchers filed

with the auditor.

In the resolve, chapter three, in favor of the guardian of Guardian Punthe Punkapog Indians, for the benefit of certain members of kapog Indians. said tribe, the sum of five hundred and four dollars.

Boston and Worcester Railroad.

In the resolve, chapter nine, in favor of the treasurer of the district of Marshpee, the sum of seventy-five dollars, payable from the income of the Massachusetts school fund.

In the resolve, chapter ten, in favor of John Mayhew, the sum of one hundred and forty-nine dollars, payable from the income of the Massachusetts school fund.

In the resolve, chapter eleven, in favor of Barnard C. Marchant, a sum not exceeding two hundred dollars; and also the sum of one hundred and four dollars, the latter payable from the income of the Massachusetts school fund.

In the resolve, chapter twelve, in favor of the city of New Bedford, the sum of one hundred and forty-four dollars and sixty-seven cents.

In the resolve, chapter thirteen, in favor of Alonzo Bond, the sum of two hundred and thirty dollars.

In the resolve, chapter fourteen, in favor of Philip Doherty, the sum of fifty dollars.

In the resolve, chapter fifteen, in favor of George W. Copeland, the sum of one hundred and nine dollars and fifty

cents.

In the resolve, chapter sixteen, in favor of H. H. Childs, the sum of fifty dollars.

In the resolve, chapter seventeen, in favor of Priscilla Freeman, the sum of two hundred and fifty-five dollars.

In the resolve, chapter eighteen, relating to the Supplement to the General Statutes, a sum not exceeding three thousand two hundred dollars, viz.: for the purchase of the existing stereotype plates, the same to be in full payment of all expenses, heretofore accrued in the publication of said Supplement, two thousand five hundred dollars; for the publication of the Supplement for the present year, five hundred dollars; and for editing the same, two hundred dollars and no part of this expenditure shall be made, except upon proper vouchers filed with the auditor.

In the resolve, chapter nineteen, in favor of the Perkins institution and Massachusetts asylum for the blind, the sum of four thousand dollars.

In the resolve, chapter twenty-two, in aid of the state library, a sum not exceeding two hundred dollars.

In the resolve, chapter twenty-three, in favor of Solomon C. Howland, a sum not exceeding seven hundred and fifty dollars, payable on vouchers properly approved and filed with the auditor.

In the resolve, chapter twenty-four, in favor of the Boston and Worcester railroad corporation, the sum of three hundred and eighty-one dollars and sixty cents.