173 Mass. 408 | Mass. | 1899
The plaintiff was hired by a person having a contract with the defendant for the construction of Lonsdale Street, a public highway duly laid out in the defendant city, and, not having been paid for his work, brings this action, relying upon St. 1892, c. 270, entitled “ An Act relating to the payment for labor performed on buildings or public works owned by cities or towns.” He seasonably filed the required certificate, and the main question is whether a claim for work done in the construction of a highway is within the first section of the statute.
The section provides that “ a person to whom a debt is due for labor performed in constructing any building, sewer, drain, water works, or other public works owned by a city or town under a contract with any person other than such city or town, . . . shall have a right of action against such city or town to recover such debt with costs.”
The plaintiff contends that a highway or street is included in the phrase “ other public works,” and that it may be said to be “ owned ” by the city or town.
The first idea which occurs to one in considering this contention is, that if the Legislature meant to include public ways it is strange it did not expressly say so. In a general sense it may be said that there is no more prominent item in the public
Again, in no proper sense can the public ways be said to be owned by the town. Town-house, engine-house, sewers, drains, and water works may be, and generally are, the private property of the town. They are constructed for the use of the inhabitants, and the ownership is in the town in its corporate capacity.
But there is no- such ownership in the highways. The town does not become by virtue of the laying out the owner either of the fee or the easement.
In Andover v. Sutton, 12 Met. 182, which was an action upon the case to recover expenses paid by the plaintiffs in repairing a highway which had been rendered defective by the flow of water caused by the dam of the defendants, who were mill owners, one of the questions was whether the' town was the owner of the way; and in discussing that matter Hubbard, J. uses the following language: “ In the ease at the bar, the plaintiffs are not the owners of the land over which the road in question passes, nor are they, as a corporation, the owners of an easement. It is a public highway, in which every citizen has an easement, and no one to the exclusion of another. The town, in the distribution of the public burdens, is bound to maintain that portion of the highway which is within its territorial limits; but, in its corporate capacity, it neither owns the soil nor the easement. It has no private rights, which are protected by the statute, [giving remedy to landowners,] or are within its purview or intent.” The action, however, was maintained because the town had sustained a damage in being compelled to repair the defect caused in the road by the act of the defendants in raising their dam and overflowing the road. To the extent of its liability to repair, the town may in a sense be said to be interested in the road, and, in the case of a bridge, that interest might be an insurable interest. And in many cases the town may, for its own protection in this respect, bring suits to prevent an injury to the way.
Judgment affirmed.
