Hatch v. Hawkes, 126 Mass. 177

Hatch v. Hawkes

126 Mass. 177 | Mass. | 1879

Ames, J.

It appears upon this bill of exceptions that the selectmen of Saugus, acting under the authority conferred by the St. of 1869, e. 237, § 1. had selected and laid out a lot of land in *181that town, belonging to the plaintiff, as a gravel pit, for the purpose of procuring earth and gravel to be used in the repair of roads. The limits of this appropriation of the plaintiff’s property were defined with sufficient precision, and the plaintiff has claimed and recovered his damages in the manner prescribed by the statute The terms of the laying out by the selectmen were not literally the same as those used in the statute, but there was, in our judgment, no material variance; and even if there had been, it is too late for the plaintiff, after claiming and accepting his indemnity, to insist upon any informality in the proceedings.

The plaintiff brings this action upon the ground that, besides taking gravel from his land, which he admits that the town had a right to do, the defendant, acting as surveyor of highways for the town of Saugus, has taken away stones varying in size from three inches to two feet in diameter, not included under the description of gravel, and which for that reason, as he contends, the town had no right to appropriate. The judge, who tried the case without a jury, has found as a fact, that these stones were not within the ordinary meaning of the word “gravel,” although they were materials proper to be used, and ordinarily used, some of them broken and some unbroken, as a foundation for deposits of gravel thereupon, in constructing, widening and repairing highways. And it was therefore ruled that the plaintiff could recover in this action the value of the stones so removed by the defendant.

The statute above referred to gives to the town the right to select and lay out lots of land “as gravel and clay pits, from which earth and gravel necessary to be used for the construction, repair or improvement of streets and ways ” may be taken. The words “ earth and gravel ” are not defined in the statute; but they must be interpreted with reference to the preceding general phrase “ gravel and clay pits,” to the purpose for which such a right is to be exercised by the town, and to the use that is to be made of the material when taken. Whether, if upon trial the supposed gravel-bank should prove to be a solid ledge of rock, the town could lawfully proceed to remove it by drilling and blasting, is a question not now before us. We are clearly of opinion, however, that the town may take any earth, gravel or stones suitable for use in repairing and constructing roads, and capable of being dug out of the ground and removed by ordinary excavation. The *182words “ earth and gravel ” are not to be taken with such extreme strictness as to require that the gravel should be screened, or that the question should be raised and decided judicially how large a pebble or movable stone must be, in order to cease to be included in the general description of “earth or gravel.” We think it was an error, therefore, in the learned judge to hold that the plaintiff was entitled to recover anything in this action, for stones actually used by the defendant acting in behalf of the town in the repair or improvement of the roads.

As to the stones which were removed from the land and left, some by the roadside and some upon other land of the plaintiff, if this act was not wantonly done, but was reasonably necessary and incidental to the convenient and proper use of the gravel pit for the purposes for which it was taken, it was not a wrong for which the plaintiff in this action can recover damages. They were not converted by the defendant to his own- use. Compensation for this claim, if recoverable at all, should have made a part of his damages in the proceeding before the county com missioners.

The fact that on the appeal from the county commissioners- the plaintiff was not permitted to offer evidence of his claim for the stones taken from his land, would not, upon the view we have taken, furnish any valid reason for maintaining the claim here. He must be understood as having recovered in that process all that was claimable under it. If, at the trial, any mistake occurred in laying down the rule of damages, or in excluding evidence which should have been admitted, he should have tendered a bill of exceptions, in order to save his rights.

Exceptions sustained.