105 Mass. 535 | Mass. | 1870
By the terms of the Gen. Sts. c. 43, § 65, “no town way, laid out or altered by the selectmen, shall be established, until such laying out or alteration, with the boundaries and ad-measurements of the way, is reported to the town and accepted and allowed at some public meeting of the inhabitants, regularly warned and notified therefor; nor unless such laying out or alteration, with the boundaries and admeasurements, is filed in the office of the town clerk seven days at least before such meeting,”
The report of the selectmen in this case, if considered independently of the plan, is not such a description as the statute requires. It sets forth that the proceedings of the town, under a previous petition in relation to the widening of another portion of Orient Street, had given such satisfaction that" the selectmen had been urged to complete the widening, “ which would require the taking of the land southerly from Mr. Jeffries’s gateway to the land of Mr. William Blaney, and also the cutting off of Mr. Blaney’s estate that was not asked for in the first petition, so to connect with the widening made on that side of the street some six years ago, and where the stake now stands representing the exact width called in the petition acted on by the town.” It cannot be contended that so far the report furnishes an intelligible description of the land proposed to be taken, or of the intended alteration of the way. It then goes on to say that they voted “ to establish the laying out and widening on the southeast side of Orient Street, as will be shown by a survey and plan made by J. Q. Hammond; ” and for the taking of 3348 feet of land (without saying whose) they award the damage of $200.88 (without saying to whom) ; and also for 943 feet of the land of William Blaney making an award of $188.60.
Our conclusion upon the whole case therefore is, that the conditions, upon which the right of the town to take the property of these plaintiffs for the proposed public use depends, have not been complied with, and that the defendants cannot lawfully enter upon those lands for the purpose of removing trees or fences, or for making or attempting to make the proposed widening of the s' rvet. It is in our judgment wholly immaterial that neither the plaintiffs noi any other person applied to the town clerk during the seven days for inspection of the plan or report. The conditions which the legislature has annexed to this exercise of the right of eminent domain are not to be modified or dispensed with, for that reason.
Other questions were considered at the argument, which in our view of the case have become immaterial, and for that reason are not now disposed of. Decree for the plaintiff in each case.