346 Mass. 412 | Mass. | 1963
The plaintiffs reside in the town of Fal-mouth and own property there. On or about June 28,1961, three selectmen of the town petitioned the county commissioners of Barnstable for “the widening, straightening, relocating or locating anew,” of a road known as Katherine Lee Bates Road from Hamlin Avenue westerly to Palmer Avenue. The plaintiffs challenge the legality of the proceedings in this bill in equity. The plaintiffs concede that certiorari rather than a bill in equity is the appropriate remedy. But the point was not raised in the court below and the case proceeded to a trial. As the parties desire a decision on the merits, we shall deal with the case on that basis.
The judge made findings of fact and rulings of law. He ruled that the proceedings were in conformity with the provisions of G. L. c. 82, and ordered a decree to be entered dismissing the bill. From a decree in accordance with that order the plaintiffs appealed. The evidence is reported.
After the filing of the petition a hearing was held under G. L. c. 82, § 4, following notice and publication under § 3. Since there were persons objecting, a second hearing was held pursuant to §§ 4 and 5. Thereafter, on March 2,1962, the commissioners made an adjudication under § 5 for the laying out of an extension of Katherine Lee Bates Road “southeasterly from Palmer Avenue to Hamlin Avenue,” followed by a detailed description, a taking of an easement, and awards of damages.
1. As stated above, the petition by the selectmen to the county commissioners was to “widen, straighten, relocate or locate anew” a road. The plaintiffs contend that be
2. The plaintiffs also urge that the reference to “Hamlin Avenue” and “Palmer Avenue” was not sufficiently definite to satisfy the requirements of § 6 of the statute. The petition could have been more definite in describing the termini but we are of opinion that there was a sufficient compliance with the statute.
3. The plaintiffs’ contention that there was inadequate notice of the proposed action of the commissioners is without merit. Despite the wording of the petition and the notice, the reference in both was to a road from “Hamlin Avenue westerly to Palmer Avenue,” and it is difficult to see how anyone could have been misled.
The plaintiffs urge that they have been put to unnecessary expense because the defendants in their counter-designation have included unnecessary matter. The plaintiffs, therefore, ask that the costs of printing this material be imposed on the defendants pursuant to Eule 2 (H) of the Eules for the Eegulation of Practice before the Full Court (1952), 328 Mass. 695. While the record could have been shorter, the added material was not so excessive as to require the imposition of costs on the defendant.
Decree affirmed.
General Laws c. 82, § 11, reads in part: “If application is made to the commissioners by a town, or by five inhabitants thereof, to relocate or order specific repairs on a way within such town, whether it was laid out by authority of the town or otherwise, they may, either for the purpose of establishing the boundary lines of such way or of making alterations in the course or width thereof, or of making specific repairs thereon, relocate it in the manner prescribed for laying out highways in sections two to nine, inclusive. ’ ’