164 Mass. 18 | Mass. | 1895
The action is for damages awarded by road commissioners in laying out town ways. The award is the same which the town unsuccessfully sought to have revised by a jury in Wrentham v. Corey, 159 Mass. 93, in which case the court declined to say whether the ways were legally laid out. The town now contends that they were not legally established, and that, if
It is agreed that the plaintiffs, owners of a tract of land in Wrentham, about the year 1886, laid out and constructed at their own expense three streets, which are the same laid out as town ways by the road commissioners on March 8, 1892, and reported to the town for acceptance in a,report which included an award of the sum now sued for as compensation to the plaintiffs for land taken and damages sustained because of the taking of their land; that when the streets were first constructed they were opened to the public by the plaintiffs, and some houses were built upon them, and that the streets have been used by the public from that time to this without restriction. The report of the road commissioners was acted upon in town meeting on March 21,1892, and since that time neither the town nor its officers have entered upon or taken possession of the streets for the purpose of constructing or altering them, or of making repairs; but the streets have been used by the public as before, and there is nothing to indicate that they are not public ways. No question is made as to the authority of the road commissioners, or the validity of their proceedings, nor as to the power of the town to establish the streets as town ways at the meeting of March 21, 1892; but it is contended that the votes passed at that meeting were not in law an acceptance and allowance of the report of the road commissioners, within the meaning of the provisions of Pub. Sts. c. 49, § 71. The record of the meeting shows that, the report of the road commissioners having been read to the meeting, a motion was made and discussed that the report be accepted; that the meeting voted that the question be divided, and that thereupon “ the town voted to accept the lay-out of the commissioners ”; that “ then the question on allowance for land damages came up. Mr. Sherman moves that the award of the commissioners, $740, be granted, which was voted in the negative.”
At the same meeting, under an article in the warrant, “ To see how much money the town will appropriate for highways and bridges the ensuing year, and determine how the same shall be expended,” the town first voted to appropriate the sum of three thousand dollars, and later the article was again taken up and
The streets were legally established as town ways, if they were “accepted and allowed” as town ways at the meeting. In the agreed statement, all questions as to the competency of the agreed facts as evidence are saved, but neither party has contended that any fact stated is not competent. We will, however, first consider only the record of the action of the meeting of March 21,1892,"under the article which warned it to hear and act upon the report of the road commissioners. The first motion was that the report be accepted, and the first vote was that the question be divided, and next “ the town voted to accept the layout of the commissioners,” and it next negatived a motion “ that the award of the commissioners, $740, be granted.” What was the “ lay-out of the commissioners ” which the meeting accepted ? The defendant contends, upon the authority of Russell v. New Bedford, 5 Gray, 31, and Cambridge v. County Commissioners, 117 Mass. 79, that “the assessment of damages in these cases is . . . part of the laying out.” If so, when the “layout of the commissioners ” was accepted, the assessment of damages, which was part of it, was accepted by the same vote. The remaining action under the article, by which a motion “ that the award of the commissioners, $740, be granted,” was negatived, is not inconsistent with the acceptance of that portion of the report which assessed damages. The natural meaning of the motion was the present appropriation of seven hundred and forty dollars to the payment of the damages awarded ; and even upon the theory that the meeting knew that the award, if accepted, could be revised only upon the application of the landowners, it was not necessary then to appropriate the money; the award
The defendant contends that the votes, taken together, were a rejection of the award; and so that the whole action under the article was not a confirmatory vote of the town upon the report. But the failure to pass in the affirmative a motion that an award of money “ be granted ” is not a rejection of the award, but a mere omission then to appropriate money for its payment. We all think that, upon a fair construction of the whole action of the meeting upon the article which brought before it the question of establishing the streets as town ways, they were accepted and allowed as such ways. This conclusion would be strengthened by considering the other votes of the town at the same meeting; for under another article the town “ granted ” the sum of six hundred dollars to be expended on these same streets, and the appropriation was illegal if they had not been established as town ways. In the same direction were the acts of the town in bringing its petition to revise the award, and in discontinuing the streets after the failure of that petition.
The remaining question is whether the fact that neither the town nor its officers have entered upon or taken possession of the ways for the purpose of constructing or altering them, or of making repairs, although the ways have been used by the public since March 21, 1892, prevents the plaintiffs from recovering. This depends upon the meaning, of the provisions of Pub. Sts. c. 49, § 69, providing that “ damages so awarded shall not be paid until the land is entered upon and possession taken for the purpose of constructing such way, . . . and if possession is not taken . . . the party, instead of the damages awarded to him, shall be entitled to indemnity, to be assessed by the selectmen or road commissioners in the same manner that indemnity is awarded by county commissioners in like cases.”
The plaintiffs contend that this statute does not apply to the case here presented; and that, if it applies, the fact that the town, after establishing as town ways these streets already constructed and in public use, permitted the public to continue to use them until October 31, 1893, without doing anything to indicate that the streets were not public ways, constitutes an entry and possession within the meaning of the statute.
Upon this question the history of the legislation is instructive. Up to the year 1842, when a public way was once established and the damages ascertained in the prescribed modes, both the right of the public to a permanent easement and the right of the landowner to his damages became vested, and the landowner could recover the damages awarded to him, although his land was never entered upon nor used by the public, and although the way had been discontinued so that the public could never use it. See Harrington v. County Commissioners, 22 Pick. 263, 267 ; Hallock v. Franklin, 2 Met. 558. In consequence of these decisions it was enacted that no person claiming damage by the laying out or altering of a highway should have a right to demand the same until the land had been entered upon and possession taken for the purpose of constructing the highway or alteration, and that if he was put to trouble or expense by the proceedings the county commissioners should allow him full indemnity therefor. St. 1842, c. 86, § 1. Harding v. Medway, 10 Met. 465, 470. In the case last cited this statute was held' to apply to all public travelled ways, whether town ways or county ways, when laid out by county commissioners; and in Bishop v. Medway, 12 Met. 125, it was held not to apply to town and private ways, when the laying out and the assessment of damages were not made by county commissioners but by selectmen. This decision was in the year 1846, and by St. 1847, c. 259, § 4, the provisions of St. 1842, c. 46, were extended, and applied to town ways and private ways thereafter to be laid out by selectmen; and it was provided that, when a person claiming damages had been put to any expense for injuries sustained
All the justices are of opinion that the ways were legally established, and a majority think that the right of the plaintiffs
Judgment for the defendant affirmed.