Lincoln v. Commonwealth, 164 Mass. 1

Lincoln v. Commonwealth

164 Mass. 1 | Mass. | 1895

Holmes, J.

In Taft v. Commonwealth, 158 Mass. 526, there was conflicting evidence as to whether Shirley Street extended across the petitioner Taft’s land before 1875, and the record of a relocation in that year establishing a part of it on Taft’s land was held conclusive against him. At the second trial, all the witnesses agreed that the way over Taft’s land was not known as Shirley Street, and that they never knew of any controversy about it. The records of the town of Winthrop were produced and showed the acceptance in 1868 of a “ street laid out from City Farm to Point Shirley, according to a plan drawn by John Lowe.” The plan was put in, and did not show any way over Taft’s land, and finally one of the petitioners for the relocation of 1875 testified that at the time he signed the petition there was no controversy as to where the southern terminus of Shirley Street was. On the other hand, the location by the town in 1868 did not cover the whole of Shirley Street. Shirley Street was an ancient highway. • There was no question that there was a visible way over the place in dispute and there was some evidence from Taft himself and from other witnesses that there was a way there by prescription. The petitioner contended that on this evidence it must be assumed that the county commissioners had no jurisdiction, but the judge ruled that the way was a public way.

The petitioner makes some slight attempt to fortify his argument by the reference to John Lowe’s plan in the relocation, and by suggesting that the petition for relocating was not intended to open this question. These suggestions may be dismissed with a few words. The relocation, although referring to Lowe’s plan, overrides it, or supplies by express words what the plan does not show. The petition is broad enough to open any question which *9could be raised on relocation, and what the petitioner intended does not matter.

Coming to the main point, we are of opinion that the ruling of the court was right. As was pointed out by the counsel for the Commonwealth, the conclusiveness of a relocation made in good faith, and not manifestly absurd, is laid down in stronger terms in Hadley v. County Commissioners, 11 Cush. 394, than it was in our former decision, 158 Mass. 526. See Tufts v. Somerville, 122 Mass. 273, 275 ; Dean v. Lowell, 135 Mass. 55. It is true on this evidence, as it was at the first trial, that the road in question was a mere spur of Shirley Street proper, even if not a part of it, and that the decision that it was part of Shirley Street was not absurd, even on the evidence produced as to the state of things before 1875. For, stated in a somewhat different way, the evidence showed that Shirley Street was an ancient highway in existence before the location of 1868, and some, if not all, of the evidence was that this continuous portion of the way was also an ancient highway. It was part of the same way in everything but name. Commonwealth v. McDonald, 160 Mass. 528. If it had not the same name, it had no public name so far as appears. Under these circumstances it is impossible to say that the county commissioners were not warranted in finding that the place in question was a part of Shirley Street, and their adjudication is not to be made dependent for its effect upon whether a jury agrees with them on the evidence which can be found many years after they decided what it was their duty to decide. It was not argued that highways by prescription may not be relocated, as well as ways laid out by a town. The language of the statute is, “ whether the same was laid out by the authority of the town or otherwise.” Pub. Sts. c. 49, § 13. “ It is immaterial how it was originally established. If by prescription, the effect of a new location would be the same.” Stockwell v. Fitchburg, 110 Mass. 305, 309, 310. Richards v. County Commissioners, 120 Mass. 401, 402.

The record was complete and clear without the plans, and the failure to produce them did not make it inadmissible.

The other exceptions do not require much discussion. An exception was taken to a ruling that the right of the Commonwealth to lay this sewer was not an additional servitude, It is *10not disputed that, when a highway is laid out, the right to lay common drains is among the elements for which compensation is given. Pierce v. Drew, 136 Mass. 75, 81, 88, and cases cited. But it is said that the Metropolitan Sewer is an uncommon drain, and cannot be supposed by any fiction to have been contemplated and paid for in the laying out of a suburban road. The answer is, that our law recognizes no such distinctions, although they seem to prevail in some other States. Van Brunt v. Flatbush, 128 N. Y. 50. Dillon, Mun. Corp. (4th ed.) § 688. When land is taken for a highway, all uses of the land directly or incidentally conducive to the enjoyment of the public easement which the necessity and convenience of the public may require, either then or in the future, are paid for, wherever the highway may be. Boston v. Richardson, 13 Allen, 146, 159, 160. It sometimes is said that the whole beneficial use of the land is taken. Commonwealth v. Lowell Gas Light Co. 12 Allen, 75, 77. As practically the landowners get the full value of their land in such cases, if there is any injustice it is not they who suffer it. Brainard v. Clapp, 10 Cush. 6. Cassidy v. Old Colony Railroad, 141 Mass. 174, 177. Newton v. Perry, 163 Mass. 319. It being settled that one of the uses covered by the taking for a highway is an underground sewer, it extends to any sewer which is natural to the configuration of the ground. See Titus v. Boston, 161 Mass. 209, 212. The fact that the public in this case is represented directly by the Commonwealth, instead of by the town, is of no importance. The beneficial interest is the same either way. Also, it is held that the public right extends to authorizing companies to make use of the Streets. Pierce v. Drew, 136 Mass. 75, 81. Commonwealth v. Lowell Gas Light Co. 12 Allen, 75. And if the Commonwealth has withdrawn from the town a part of the right formerly vested in it, that is no more a wrong to the petitioner than a conveyance in fee by a private person having a similar right in gross would be on the ground that it changed the chances of an extinction of the owner’s blood.

Temporary interruptions of business caused by the construction of the sewer along the highway where the Commonwealth had a right to construct it without a new taking for the petitioner cannot be recovered for. This was all that the ruling of the court *11meant. Brooks v. Boston, 19 Pick. 174, 178. Treadwell v. Boston, 123 Mass. 23, 25.

The question to the assessor, whether in assessing Taft’s land he ever deducted a roadway, or assessed it in two parts, was irrelevant to any issue which was open, apart from other objections. See Kenerson v. Henry, 101 Mass. 152, 155.

Exceptions overruled.