Blaisdell v. Inhabitants of Winthrop

118 Mass. 138 | Mass. | 1875

Devens, J.

In order that the plaintiff should maintain this petition it is necessary for him to show a legal laying out of the town way in the construction of which his land was taken.

Road commissioners having been chosen by the town, they had the powers and duties ordinarily vested by law in the selectmen and surveyors of highways as to laying out and altering streets. St. of 1871, e. 158. No town way laid out or altered by them can be accepted and allowed at a meeting of the town for such purpose, “ unless such laying out or alteration with the boundaries and admeasurements is filed in the office of the town clerk seven days at least before such meeting.” Gen. Sts. c. 43, §65.

This provision is not a mere formality, but intended to lay down an indispensable condition, upon compliance with which the right bf appropriating private property to public uses of this description can alone be lawfully exercised. Jeffries v. Swampscott, 105 Mass. 535.

The plan filed by the road commissioners cannot be considered as satisfying the requirements of the statute. Even if it set forth the boundaries and admeasurements of the road and of the land proposed to be taken, it did not bear the signatures of the commissioners, nor did it even appear by the certificate of filing, indorsed by the town clerk, that it was filed by them.1 It bore no evidence that it was an authentic document proceeding from them, whip}' indicated that according to the boundaries and admeasurements as laid down upon it they proposed and reported the laying out of a town way.

In Jeffries v. Swampscott, supra, there was a report filed by the selectmen, but without reference to a plan which was not filed it was not intelligible ; and it was held that, such plan not having been filed seven days before the town meeting, no report had been filed, sufficient to satisfy the statute and authorize the taking of the landowner’s property. Here no report whatever was filed; a plan was filed, but even if it had been properly authenticated, it was unintelligible for want of any reference to a report setting forth a laying out by the road commissioners in conformity therewith.

Nor was this defect cured by the paper signed by the road commissioners stating the quantity and value of the land taken by them from the petitioner. It had no reference to the plan, alluded to no way or road laid out by them ; and the mere fact, that the quantity of land stated in this paper, and that which appeared upon the plan as belonging to the petitioner and included within the line of what is there laid down as a road, are similar, cannot connect the two papers together so as to make such a report of a laying out of a road as is required.

Exceptions overruled.