148 Mass. 578 | Mass. | 1889
We shall not enter upon the discussion to which we were invited by the arguments, as to whether a private landowner would be liable to travellers upon a highway for the noise caused by the firing of a cannon three times upon his land by
The city is alleged to own the Common. But it appears by statutes and decisions, of which we are bound to take notice, that its rights, even at common law, hardly extend beyond a technical title, without the usual incidents of title, and it is equally apparent that the license which it gave was not given by it as an act of ownership, but as an act of municipal government.
“ The city holds the Common for the public benefit, and not for its emolument, or as a source of revenue.” The use of it is dedicated to and belongs to the public. Steele v. Boston, 128 Mass. 583. Veale v. Boston, 135 Mass. 187. Abbott v. Cottage City, 143 Mass. 521. And the Legislature has regulated the use very strictly. The city cannot let or sell the Common. St. 1854, c. 448, § 39. It cannot build upon it except within the narrowest limits. Pub. Sts. c. 54, § 16; c. 27, § 50. See St. 1859, c. 210, § 3. It cannot lay out ways over it. Pub. Sts. c. 54, § 13. Conversely, the city is not bound to keep it in safe condition, and is not answerable for defects in the paths which cross it. Steele v. Boston, 128 Mass. 583. Veale v. Boston, 135 Mass. 187. See also Oliver v. Worcester, 102 Mass. 489; Clark v. Waltham, 128 Mass. 567.
These considerations make plainer what is very plain without them, that the ordinance set out in the declaration is not' the
The case, then, is simply that the city has failed to prohibit by legislation the firing of cannon in a public park, or has given its legislative sanction on certain conditions. It has no private interest in the matter, and there is no statute giving an action for such a cause. Clark v. Waltham, 128 Mass. 567, 570, and cases supra. See Hutchinson v. Concord, 41 Vt. 271, 274; Tindley v. Salem, 137 Mass. 171. Annoying, and even dangerous, as such firing may be, an adjoining householder could not maintain an action against the city; and the plaintiff stands no better than an adjoining owner would. We do not understand that he seeks to charge the city for a breach of its statutory duty with regard to highways. With regard to that, however it may be as to the duty of landowners, it would be enough to say that the act of the. person who fired the cannon was the proximate, or at least a concurring cause, and that he was not a servant of the city;
Perhaps it will save future litigation if we go one step further, and intimate that, as the subject matter was within the city’s authority to regulate by by-law, and as the by-law, so far as appears, is reasonable, those who act under it are justified in doing what we all know extra-judicially to have been done upon the Common time out of mind. Judgment affirmed.
See Arey v. Newton, post, p. 598.