262 Mass. 514 | Mass. | 1928
This is an action to recover for personal injuries received by the plaintiff while travelling upon a motorcycle on Powder House Boulevard, so called, in the city of Somerville. The boulevard is eighty feet wide throughout its entire length; it “is constructed with a Macadam roadbed, surfaced with gravel, asphalt and tar, with concrete sidewalks on either side with edge stones, street lights and sewers.” There are twelve intersecting streets which cross the boulevard, and buildings are constructed along its entire length on the fine of the sidewalks.
It was admitted at the trial that the boulevard was open to public travel, and that no signs or warnings were posted notifying the public that it was not intended for such travel. At the time the plaintiff was injured about one half mile of it
The boulevard was laid out and has been maintained by the defendant under St. 1899, c. 195, which authorized the city to take the lands comprising it, and to maintain them for the purpose of a parkway or boulevard, with the power to lay out and improve it. It is plain that this parkway or boulevard was not a public street or way and that the defendant is not hable to travellers thereon for defects or want of repair under G. L. c. 84, § 15.
The question remains whether this parkway or boulevard is “A way opened and dedicated to the public use” within the meaning of those words in G. L. c. 84, § 23. A way by dedication is a way over land which the owner thereof has dedicated to the use of the public for a way. Hobbs v. Lowell, 19 Pick. 405. Hayden v. Attleborough, 7 Gray, 338. Previously to the year 1846, a highway could be created by dedication by the owner with the assent of a city or town, and the use thereof by the public was evidence of such assent; but by St. 1846, c. 203, the law was changed to provide that no way opened and dedicated to the public use should thereafter become a public charge by reason of such public use until the same should have been laid out and established under the statutes of the Commonwealth. G. L. c. 84, § 23. Rouse v. Somerville, 130 Mass. 361,365. McKenna v. Boston, 131 Mass. 143. Nicodemo v. Southborough, 173 Mass. 455. The statute under which this parkway or boulevard was established and is maintained created a public park; the circumstance that the entire park is devoted to travel upon a roadway built for that purpose does not make applicable the provisions of G. L. c. 84, §§ 23, 24. The establishment of such a roadway did not deprive the park of its character as such. Its entire use as a roadway open to public travel
In accordance with the terms of the report judgment is to be entered for the defendant on the verdict.
So ordered.