Opinion of the Justices, 374 Mass. at 856-857. See Brooks v. Boston, 334 Mass. 285, 286 (1956). The judge, after considering the numerous restrictions the disposition agreement and the urban renewal plan imposed on parcel B, found that the sale price to Emerson College is the fair market value.
Since fair value would be paid for the portion of the Franklin Institute which was acquired through the use of public funds, no violation of art. 46 would result from the transfer of this asset. See Brooks v. Boston, 334 Mass. 285 (1956). Hence, the transfer to Boston University by the city of Boston and the Commonwealth of their interests in the Franklin Fund and the Franklin Institute would not violate art. 46.
Under such circumstances, no violation of the above-cited constitutional provision necessarily obtains. Brooks v. Boston, 334 Mass. 285 (1956). 5. Allowance of Deviations from the Zoning Code.
ition unless a notice of restriction is recorded before the expiration of such fifty years or before . . . [January 1, 1964], whichever is later." The decisive issue in this case is whether the town (a) obtained and held title to the land in question as the unconditional owner thereof in fee simple, subject to G.L.c. 45, § 7, to the effect that "[l]and taken for or held as a park under this chapter shall be forever kept open and maintained as a public park, and no building which exceeds six hundred square feet in area on the ground shall be erected on a common or park dedicated to the use of the public without leave of the general court," but with the right to divert the land to other uses and purposes when expressly authorized to do so by the Legislature as held by this court in the following decisions: Higginson v. Treasurer Sch. House Commrs. of Boston, 212 Mass. 583, 585-593 (1912); Lowell v. Boston, 322 Mass. 709, 731-736 (1948); Loomis v. Boston, 331 Mass. 129, 131-132 (1954); Brooks v. Boston, 334 Mass. 285, 286-287 (1956); Gould v. Greylock Reservation Commn. 350 Mass. 410, 419 (1966); Robbins v. Department of Pub. Works, 355 Mass. 328, 330 (1969); and Brookline v. Metropolitan Dist. Commn. 357 Mass. 435, 440 (1970) (see Athas v. Mayor of Holyoke, 356 Mass. 382, 384 [1969]), or (b) obtained and held title to the land under circumstances which made the land subject to a public charitable trust requiring that the land be used only for the purposes of a public park without any power in the Legislature to authorize or require the town to divert the trust property to other uses or purposes, as held by this court in the following decisions: Adams v. Plunkett, 274 Mass. 453, 462-463 (1931); City Bank Farmers Trust Co. v. Carpenter, 319 Mass. 78, 79-80 (1946); Nickols v. Commissioners of Middlesex County, 341 Mass. 13, 18-20 (1960); Salem v. Attorney Gen. 344 Mass. 626, 630-631 (1962); and Mahoney v. Attorney Gen. 346 Mass. 709, 714-715 (1964). On the facts of this case there is no occasion to discuss the ques
1. If the locus was not acquired by the city in 1907 subject to a specific trust, it was "held . . . [by the city] only in its municipal capacity . . . for the benefit of the general public subject to the power of the Legislature to authorize its sale." Brooks v. Boston, 334 Mass. 285, 287. See Loomis v. Boston, 331 Mass. 129, 131-132; Wakefield v. Attorney Gen. 334 Mass. 632, 636; Jacobson v. Parks Recreation Commn. of Boston, 345 Mass. 641, 643.
This exercise of the undoubted power of the General Court over a municipality and its property cannot be tortured into a "gift or conveyance" and it is inconsequential whether the purpose was "a specific purpose . . . in trust or otherwise." See Loomis v. Boston, 331 Mass. 129, 131-132; Brooks v. Boston, 334 Mass. 285. Compare Clark v. Mayor of Gloucester, 336 Mass. 631, 633. 2.
Jacobson v. Parks Recreation Commn. of Boston, 345 Mass. 641, 643 (1963). See Brooks v. Boston, 334 Mass. 285, 286 (1956). Loomis v. Boston, 331 Mass. 129 (1954), relied on by Gilberg and the city, is distinguishable.