157 Mass. 17 | Mass. | 1892
This is a petition to recover damages for the discontinuance of a part of Summer Street in Malden, which runs into Florence Street obliquely just opposite the petitioner’s land. The petitioner’s means of access to his estate remain ample, but it is possible, if not probable, that its money value is diminished by diverting the stream of travel which formerly flowed toward it over Summer Street.
The petitioner begins by asking us to overrule Smith v. Boston, 7 Cush. 254, and the cases which have followed it. He cites the English decisions, ending with Metropolitan Board of Works v. McCarthy, L. R. 7 H. L. 243, and Caledonian Railway v. Walker, 7 App. Cas. 259, which show a tendency to establish a more liberal rule of damages than ours, and he argues further that laying out the discontinued piece of street would have been a benefit for which the petitioner might have been assessed; Allen v. Charlestown, 109 Mass. 243; Hilbourne v. Suffolk, 120 Mass. 393; and that it follows conversely that it must be a damage for which he should be paid if it is taken away. He might have added, that there are Massachusetts decisions on other statutes giving damages which adopt a more liberal test even than the English cases, and give damages for which an action would not lie had the act been done without authority of statute. Woodbury v. Beverly, 153 Mass. 245, 247, 248. See L. R. 7 H. L. 252.
None of the considerations which have been urged seem to us to warrant our overruling a construction of a statute which has
No doubt there are many cases in which it is left to the jury to fix the difference of degree at which liability begins. Very likely this is one of them in England. But there are also many, and a constantly-increasing number, in which the law draws the line. The principles on which it has done so may not have been consistent, because it has acted sporadically, and not always upon a general theory consciously held. Nevertheless one may doubt whether substantial justice has not been approached most nearly when it has not been a matter of course to leave every nice question of the standards of conduct to a jury.
The petitioner further contends that he brings himself within the principles of Smith v. Boston, because, as he says, a small point of land of which he owns the fee subject to the public right of way touches the discontinued part. We do not pause to consider whether the fact is as alleged, because if it is it would not affect our decision. The proposition on which Smith v. Boston was decided was, that, to lay a foundation under our statute for a claim of damages for discontinuing a highway, it is not enough to show that a shop has suffered by the diversion of travel, or that the owner finds travel less convenient at a distance from his place, if the access to the system of public streets remains substantially unimpaired.
Judgment on the verdict.