Where less than a fee is condemned, the use of the property taken must be for and in accordance with the purposes which justified its taking and which was the basis for assessing damages. Ponca City v. Drummond, 94 Okla. 138, 221 P. 466, 467; Thomas v. Morris, 190 N.C. 244, 129 S.E. 623, 626; Inhabitants of the Town of Lexington v. Suburban Land Co., 235 Mass. 108, 126 N.E. 360, 361; 18 Am.Jur., § 180, p. 811. Robinson v. Kent Mfg. Co., 282 Pa. 539, 128 A. 501, 502, 503.
We need not consider whether, if construction of any such way inconsistent with the approved plan should be undertaken, § 77 provides the exclusive statutory penalty. See Board of Survey of Lexington v. Suburban Land Co. 235 Mass. 108, 113. The special answer of the jury that the petitioners' pre-1955 driveway did not "unreasonably obstruct the rights of others" in the avenue is thus conclusive of this case.
Creditors' Service Corp. v. Cummings, 57 R.I. 291, 300. The defendants' counterclaim seeks relief expressly authorized by St. 1955, c. 697, § 2. Board of Survey of Lexington v. Suburban Land Co. 235 Mass. 108, 113. Commonwealth v. Stratton Finance Co. 310 Mass. 469, 474.
In the case at bar, which was heard on demurrer, no intendment can be made in favor of the pleader. Board of Survey of Lexington v. Suburban Land Co. 235 Mass. 108, 112-113. Arena v. Erler, 300 Mass. 144, 146.
There are now many instances. Some of them are cited in Board of Survey of Lexington v. Suburban Land Co. 235 Mass. 108. Such statutory provisions were held constitutional only by a closely divided court in Carleton v. Rugg, 149 Mass. 550. The objections to "criminal equity" are that it deprives the defendant of his jury trial; that it substitutes for the definite penalties fixed by the Legislature whatever punishment for contempt a particular judge may see fit to exact; that it is often no more than an attempt to overcome by circumvention the supposed shortcomings of jurors; and that it may result, or induce the public to believe that it results, in the arbitrary exercise of power and in "government by injunction."
Cheney v. Barker, 198 Mass. 356, 364. See also Board of Survey of Lexington v. Suburban Land Co. 235 Mass. 108, 111. But the Legislature may delegate to municipalities the authority in such matters, which it might itself have exercised directly.
The action of the board did not purport to do so. St. 1925, c. 35. Nute v. Boston Co-operative Building Co. 149 Mass. 465, 469. Board of Survey of Lexington v. Suburban Land Co. 235 Mass. 108. The approval of the board amounted merely to the regulation of existing rights and determined in the public interest the manner in which such rights should be exercised.
Compare Miller v. Post, 1 Allen, 434; Allen v. Hawks, 13 Pick. 79, 82; Huey v. Passarelli, 267 Mass. 578, 581-582, and cases there reviewed. The enactment of said c. 110A would signally fail of its beneficent object if a purchaser ignorant in fact of its violation by the seller until after the full execution of the contract were to be denied relief. For the same reason the doctrine of cases illustrated by Board of Survey of Lexington v. Suburban Land Co. 235 Mass. 108, and Somers v. Commercial Finance Corp. 245 Mass. 286, does not restrict this interpretation of the statute. The circumstance that the statute under consideration in Adams v. Goodnow, 101 Mass. 81, contained express provision as to making void the contracts forbidden does not militate against the conclusion here reached.
Since the case comes before us on bill and demurrers, no intendments can be made in favor of the bill. The plaintiff must plead every material fact essential to establish a right to relief. Bowker v. Torrey, 211 Mass. 282, 286. Lexington Board of Survey v. Suburban Land Co. 235 Mass. 108, 112. 3. This suit is brought on the theory that the directors, the bankers and the appraisal company were the promoters of the new corporation and that on the facts set forth in the bill the profits made by the promoters out of the transactions may be recovered to be paid to the new corporation.
See Cambridge v. Trelegan, 181 Mass. 565. Commonwealth v. Young, 135 Mass. 526, Belmont v. New England Brick Co. 190 Mass. 442, Lexington Board of Survey v. Suburban Land Co. 235 Mass. 108, and the other cases relied on by the defendant are not applicable to the facts in the case at bar and do not prevent the plaintiff from obtaining equitable relief against the defendant. Under § 147 of G.L.c. 111, whoever is aggrieved by an order made under § 143 or § 152 of this chapter may within three days after the service of the order upon him give written notice of appeal to the board and file a petition for a jury, and after notice to the board he may have a trial in the same manner as other civil cases are tried by jury. If by mistake or accident he fails within three days to make application, and it appears to the court that such failure was caused by accident or mistake, and he has not since the service of the order violated it, he may within thirty days after service of the order apply for a jury.