Eklon v. City of Chelsea

| Mass. | Mar 3, 1916

Rugg, C. J.

This is an action to recover damages for injuries sustained by a traveller at a place alleged to be a public way in the defendant city. The only question is, whether as matter of law the place where the plaintiff was hurt was within a public way. The pertinent facts are that in 1871 that place was within the limits of a highway called Broadway, which then was widened so as to include it. The city of Chelsea seasonably accepted St. 1892, c. 325, whereby it was authorized “to use so much of Broadway square in said city as may be necessary for the purposes of a parkway or park.” In July, 1896, after the enactment of St. 1895, c. 325, which authorized the city to incur indebtedness not exceeding $100,000, beyond the limits fixed by law, for “acquiring and improving open spaces for park, parkway and playground purposes,” the board of aldermen (being the proper board to pass such an order) voted to appropriate $10,000, to be expended under the direction of the park commissioners for the improvement of Winnisimmet Square. The park- commissioners, under that vote,

constructed the whole area included within a curb, the middle portion being “set out with shrubbery and laid out in grass.” Outside of this was a brick walk and a curb, where the plaintiff was injured, which was within the limits of Broadway as widened in 1871.

It does not appear that any taking of land by written instrument or plan was made by the park commissioners. Doubtless, under some' circumstances, a physical seizure of private property may constitute a taking under the power of eminent domain, Bryant v. Pittsfield, 199 Mass. 530" court="Mass." date_filed="1908-10-19" href="https://app.midpage.ai/document/bryant-v-city-of-pittsfield-6430374?utm_source=webapp" opinion_id="6430374">199 Mass. 530, yet a mere change from one public board or officer to another in the care and maintenance of á part of a highway, without more, is not enough to constitute an extinguishment of the highway. There is nothing in the record to show that Broadway Square or Winnisimmet Square had a definite location. It does not appear where either of these squares is, or whether they are different squares or the same square with different names. St. 1892, c. 325, authorizes only the use of Broadway Square, but not of Broadway, for a park or parkway.

This record fails to show that the place where the plaintiff was injured had ceased to be a highway. It was once appropriated to that public use. It continued to be a place of public travel. The presumption is that a lawful public use, once established, continues until it explicitly appears that the place has been given over lawfully to some other purpose. Land taken for one public use may be devoted to another public use only by legislative authority clearly expressed, whose mandate as to the method of actually making the change must be exactly followed. But whether there has been such change cannot be left to an indefinite surmise. If made, its nature and extent must be established by unequivocal acts. Higginson v. Treasurer & School House Commissioners of Boston, 212 Mass. 583" court="Mass." date_filed="1912-10-15" href="https://app.midpage.ai/document/higginson-v-treasurer--school-house-commissioners-6431932?utm_source=webapp" opinion_id="6431932">212 Mass. 583, 591. When a highway is laid out, it cannot be discontinued or put to another use except by some public and notorious act of a duly authorized public board or officer. There is nothing to show that the proper officers of Chelsea have discontinued as a public way the part of Broadway where the accident occurred. It is not possible upon this record to go further than to say that as matter of law the place in question remained within the limits of Broadway, which as a highway the defendant was bound to maintain in a condition reasonably safe and convenient for public travel.

In accordance with the terms of the report, let the entry be

Judgment for the plaintiff in the sum of $3,500 and'’costs.