128 Mass. 546 | Mass. | 1880
The highway surveyors of the town of Dudley, for the purpose of repairing the roads of that town in the years 1875 and 1877, authorized and directed in each of those years that several loads of earth be taken from the plaintiffs’ land within
There is nothing in the facts agreed which shows such abuse of authority on the part of the surveyors, or either of them, as would make them or their servants and agents liable in tort for the conversion of the soil so removed.
When land is taken for a highway, the public acquires, as incident to the easement, the right to use the soil and materials for constructing and keeping in repair a way safe and convenient for all descriptions of public travel. And the power to determine what is necessary in order to maintain such a way is given by law to highway surveyors, whose decision must, from the nature of the question, be final and conclusive. The only remedy to the party suffering damage is the right to compensation given by statute. Gen. Sts. c. 44, §§ 19, 20. Upon the question of necessity, the judgment and action of these public officers cannot be revised by the jury in any action at law. And if the act be done within the scope of the surveyors’ authority, it does not become illegal by reason of the motive which influenced it. Benjamin v. Wheeler, 8 Gray, 409. Denniston v. Clark, 125 Mass. 216.
The surveyors of Dudley, therefore, had the right to remove the soil in question, if the same was in their judgment an obstruction to the public travel, or if they deemed it necessary to change the grade of the road on the side of the hill; and their decision that it was necessary to remove it was conclusive on all parties. Gen. Sts. c. 44, § 8. Morrison v. Howe, 120 Mass. 565. Bay State Brick Co. v. Foster, 115 Mass. 431.
Judgment affirmed.