108 Mass. 196 | Mass. | 1871
By the common law of England, foot ways for the use of the public were one of the kinds of public ways, and might be created by dedication or prescription. Co. Lit. 56 a. Thrower’s case, 1 Ventr. 208. The Queen v. Saintiff, Holt, 129 ; S. C. 6 Mod. 255. The Queen v. Cluworth, 6 Mod. 163; S. C. 1 Salk. 359; Holt, 339. Rex v. Burgess, 2 Burr. 908. Mercer v. Woodgate, Law Rep. 5 Q. B. 26. This part of the English law, being manifestly adapted to the condition of our ancestors upon their settlement of this country, was part of the common law which they brought with them, claiming it as their birthright.
The general court of the Plymouth Colony in 1627, in the earliest ordinance for the allotment of lands, provided “ that the old paths be still allowed, and that every man be allowed a con- ' venient way to the water wheresoever the lot fall.” In 1633 the same court passed this ordinance: “ That whereas divers footpaths lie through- men’s inclosures, and that great damage hath and may come to many by pulling up the same for driving of cattle or the like, it is ordered that no man pull up any but upon extreme necessity, nor then without leave.” And in 1639 a more specific ordinance was made, and was reenacted in 1650 and 1671, providing “ that if an highway be wanting in any township of this government, upon due complaint, that then the governor or any of the assistants empanel a jury, and upon oath charge them to lay out such ways, both for horse and foot, as in conscience they shall find most beneficial for the commonwealth, and as little prejudicial as may be to the particulars ; and that all old paths shall be allowed, except other provision be orderly made; and that when there are allowed footpaths over any man’s ground which is fenced up, the owners of such fences shall make convenient stiles or gates.” Plym. Col. Laws (ed. 1836) 30, 34, 64, 277.
In the Colony of Massachusetts, the general court in 1632 required the town or plantation of Saugus “ to make and continually to keep a good foot bridge ” over the Saugus River, and in 1641 ordered “ that a foot way should be set out through Noddle’s Island,” now East Boston. 1 Mass. Col. Rec. 100, 330. Upon the records of the town of Boston, it appears that at a meeting of the selectmen on April 29,1639, “ it was agreed upon,
The Prov. St. of 1692-3 (4 W. & M.) a. 13, entitled “an act for building with stone or brick in the town of Boston, and pre
The Prov. St. of 1773 (13 Geo. III.) e. 4, authorized the selectmen of Boston to set up and maintain lamps “ for enlightening the streets, lanes, alleys and passageways,” and to remove any posts or signs therein, which in their judgment might “ tend to intercept or in any ways lessen the light in said lamp.” Mass. Temp. Laws (Supplts. to ed. 1763) 504. That act, originally made for five years, was continued in force by successive statutes until 1797, when it was made perpetual. St. 1796, e. 69.
By the Sts. of 1799, o. 31, § 3, and 1804, c. 73, the selectmen of Boston were authorized to widen “ any street, lane or alley in said town,” “ and the same street, lane or alley, being recorded in the town books, shall be thereby established as such.” 2 Special Laws, 339. 3 lb. 506. And the St. of T816, c. 90, affirmed their authority “ to discontinue any street, lane or alley of the said town, or to make any alteration in the same, in part or in whole.”
The general statutes of the Province and Commonwealth, authorizing the laying out of public ways by municipal and county officers, have been confined to highways and town ways for the use of passengers with their horses, teams and carriages, or droves of cattle, and have not included foot ways. Prov. Sts. 1693-4 (5 W. & M.) g. 6 ; 1 Prov. Laws, 136 ; Mass. Perpet. Laws, 43 Arne. Chart. 267. Sts. 1786, eo. 67, 81. Rev. Sts. cc. 24, 25 Gen. Sts. go. 43, 44. And the provision of the St. of 1846, c. 203
It was assumed in Hemphill v. Boston, 8 Cush. 195, and Danforth v. Durell, 8 Allen, 242, that public foot ways might be created by dedication in this Commonwealth. And the existence of such ways by dedication or prescription has been recognized in other states. Chadwick v. McCausland, 47 Maine, 342. Nudd v. Hobbs, 17 N. H. 524. Gowen v. Philadelphia Exchange Co. 5 W. & S. 141. 3 Kent Com. (6th ed.) 451 note.
The evidence introduced at the trial was ample to prove a public foot way by dedication across the plaintiff’s close, and it is therefore unnecessary to consider the other grounds of defence.
Judgment for the defendant.