Williams v. Parker

On May 23, 1898, the legislature of Massachusetts passed the following act:

'Sec. 1. Any building now being built, or hereafter to be built, rebuilt, or altered in the city of Boston, upon any land abutting on St. James avenue, between Clarendon street and Dartmouth street, or upon land at the corner of Dartmouth street and Huntington avenue, now occupied by the Pierce building, so-called, or upon land abutting on Dartmouth street, now occupied by the Boston Public Library building, or upon land at the corner of Dartmouth street and Boylston street, now occupied by the New Old South Church building, may be completed, built, rebuilt, or altered to the height of 90 feet, and no more; and upon any land or lands abutting on Boylston street, between Dartmouth street and Clarendon street, may be completed, built, rebuilt, or altered to the height of 100 feet, and no more: Provided, however, That there may be erected on any such building, above the limits hereinbefore prescribed, such steeples, towers, domes, sculptured ornaments and chimneys as the board of park commissioners of said city may approve.

'Sec. 2. The provisions of chapter 313 of the acts of the year 1896, and of chapter 379 of the acts of the year 1897, so far as they limit the height of buildings, shall not be construed to apply to the territory specified and restricted in § 1 of this act.

'Sec. 3. The owner of, or any person having an interest in, any building upon any land described in § 1 of this act, the construction whereof was bugun, but not completed, before the 14th day of January in the current year, who suffers damage under the provisions of this act by reason or in consequence of having planned and begun such construction, or made contracts therefor, for a height exceeding that limited by § 1 of this act for the locality where said construction has been begun, may recover damages from the city of Boston for material bought or actually contracted for, and the use of which is prevented by the provisions of this act, for the excess of cost of material bought or actually contracted for over that which would be necessary for such building if not exceeding in height the limit prescribed for that locality by § 1 of this act, less the value of such materials as are not required on account of the limitations resulting from the provisions of this act, and the actual cost or expense of any rearrangement of the design or construction of such building made necessary by this act, by proceedings begun within two years of the passage of this act, and in the manner prescribed by law for obtaining payment for damages sustained by any person whose land is taken in the laying out of a highway in said city.

'Sec. 4. Any person sustaining damage or loss in his property by reason of the limit of the height of buildings provided for in this act may recover such damage or loss from the city of Boston, by proceedings begun within three years of the passage of this act, and in the manner prescribed by law for obtaining payment for damages sustained by any person whose land is taken in the laying out of a highway in said city.' Acts and Resolves of Massachusetts, 1898, chap. 452.

The building of plaintiff in error comes within the scope of this statute, and on September 17, 1898, the attorney general of Massachusetts filed an information in the supreme judicial court of that state to enjoin the maintenance of that part of the building above the 90-foot line. To this information the defendants pleaded, among other things, that 'the statute,. . . in its application to the defendants,. . . is in violation of the 2d clause of § 1 of the 14th Amendment, and of other provisions of the Constitution of the United States.' Pending this proceeding, the defendants commenced actions against the city of Boston for damages, as provided in §§ 3 and 4 of the statute. The city filed a general denial. The defendants then moved that the attorney general be required to join the city as a party defendant, in order that the question of the city's liability to damages might be conclusively determined in this proceeding, or, in default of such joinder, that it be stayed until the city's liability could be conclusively determined. This motion was denied, and the defendants appealed from the denial thereof. The facts were agreed upon, and the case reserved by the presiding justice for the consideration of the full court. Upon March 13, 1901, a decree was entered, sustaining the contention of the attorney general, and directing a removal of those parts of the building above the height of 90 feet, without prejudice, however, to the right of defendants under the statute to maintain such steeples, towers, etc., as the board of park commissioners of the city of Boston should approve. 174 Mass. 476, 47 L. R. A. 314, 55 N. E. 77. To review such judgment this writ of error was sued out.

Messrs. Albert E. Pillsbury and Grant M. Palmer for plaintiffs in error.

[Argument of Counsel from pages 493-498 intentionally omitted]

Messrs. Edmond A. Whitman and Samuel J. Elder for defendant in error.

[Argument of Counsel from pages 498-502 intentionally omitted]

Mr. Justice Brewer delivered the opinion of the court: