Loring v. City of Boston

78 Mass. 209 | Mass. | 1858

Bigelow, J.

The claim for damages in this case is clearly barred. The statute requires that a petition for the assessment of damages occasioned by laying out a street in the city of Boston shall be filed at any term of the court held within one year from the laying out of the way, and not afterwards. Rev. Sts. c. 24, § 55. The phraseology of this section is the same with the subsequent one in the same chapter, § 76, relating to the application to the county commissioners for the assessment of damages occasioned by laying out a town way. It has been expressly decided, that under this provision a petition was filed too late, if it was after the expiration of one year from the vote by which the road or way was laid out. Russell v. New Bedford, 5 Gray, 31.

Nor can there be any doubt that it is the adjudication of the mayor and aldermen that common convenience and necessity require land to be taken, and directing that a way or street shall be laid out over the same, which constitutes’the laying out from which the period of limitation is to be reckoned. It is this act which creates the public right or easement over the land. The claim of the landowner to his damages then accrues. The city would be estopped by the vote laying out the street to deny that it was- established, or that the right to ask for damages therefor was complete. The land becomes appropriated to the public use by the vote or adjudication which declares that a street is laid over it, and the right of the owner to the exclusive use and occupation of it then ceases. Brown v. Lowell, 8 Met. 178. Commonwealth v. Boston, 16 Pick. 446. Hallock v. County oj Franklin, 2 Met. 559, 560.

The provision contained in the St. of 1847, c. 259, § 4, has no application to this case, it being in terms confined to town ways and private ways laid out or altered by selectmen of towns. Harding v. Medway, 10 Met. 465.

Nor can the petitioner rely on the St. of 1857, c. 133, as extending the time within which a party may apply for the assessment of his damages. That statute was passed long after those proceedings were had, and cannot be construed to be retroactive.

It was suggested in behalf of the petitioners that there was evidence in the case from which a jury might infer that the first laying out of the way in 1851 was waived by the city. But after a way has been once duly laid out, it continues to be such until discontinued according to law. Harrington v. County Commissioners, 22 Pick. 263. Exceptions overruled