Henry v. Thomas
1876 Mass. LEXIS 93
Mass.
1876
Check Treatment
Devens, J.

Many objections have been made by the respondents to this proceeding which it is unnecessary to discuss, as we are of opinion that there is one which is necessarily fatal to it.

*584In order to initiate the proceeding, it is provided that the proprietors, or “ the greater part of them in interest,” shall apply to the Superior Court setting forth the proposed improvements and the reasons therefor.” Gen. Sts. c. 148, § 2. At the trial the court ruled that by the words “greater part in interest” was meant those having the greater part in extent of territorial area and not in value of interest. This ruling was erroneous; the more obvious meaning, that such proprietors shall have the greater interest in value, is fortified by the whole character of the proceeding. By it the proprietors of the meadow or swamp are treated as owners of a common property whose individual rights must be subjected to such modifications as the commissioners may judge most practicable to secure the best advantage of all. Coomes v. Burt, 22 Pick. 422. Lowell v. Boston, 111 Mass. 454, 469. In questions concerning the management of property of this character, it is but just that those having the greater interest in value should be those to commence the proceedings and to propose the improvements to be made. Such improvements are not of a public character; they affect only the estates of those who are owners of the property; and the action which is to be taken relates only to that in which all have a common interest, or in reference to which all are affected by a common necessity. Lowell v. Boston, ubi supra.

This is analogous to the management of wharves and general fields by their proprietors, who are to vote in regard thereto according to the relative amount or value of their interest when known. Gen. Sts. c. 67, §§ 12, 24. Nor can it be fairly contended that, because the words “ amount ” and “ value ” are used in the statute last referred to in connection with the word “ interest,” and not in c. 148, a different construction is to be given to the latter statute. The word “ interest ” is itself sufficient to include value. Exceptions sustained.*

Notes

By the St. of 1876, c. 228, passed April 28, 1876, § 2, of the Gen. Sts. c, 148, is amended by adding the words “ either in value or area,” after the word “interest.”