Gould v. City of Boston

Gbay, C. J. In Hemphill v. Boston, 8 Cush. 195, the point decided was that the city of Boston was not liable for an injury to a horse and carriage by a defect in a way which had been laid out and dedicated as a footpath only. In Oliver v. Worcester, 102 Mass. 489, the decision was that a footpath across the common in the city of Worcester, which was not shown to have been laid out by municipal authority, or specially dedicated to the public use as a footpath, was not a highway for defects in which the city was liable to travellers under the Gen. Sts. c. 44, §§ 1, 22. But in each of those cases the court abstained from discussing the question how far it was competent for any officers or tribu [305] nais to lay out public ways for foot passengers only. 8 Cush. 196. 102 Mass. 495. For the purposes of the present case, it may be assumed that, before the St. of 1874, c. 299, cities and towns and their officers had no authority, under the general laws of the Commonwealth, to lay out, or to accept the dedication of footpaths, so as to make them liable to passengers for defects therein. In Tyler v. Sturdy, 108 Mass. 196, an opinion to that effect was expressed; but it was held that public footpaths might be created by dedication, so as to give the public a right of way over them; and reference was made to several special statutes which authorized the selectmen of the town of Boston to lay out, widen and discontinue not only “ streets and lanes,” but “ alleys ” or footpaths. Sts. 1799, c. 31, § 3 ; 1804, c. 73 ; 1816, c. 90. And in the earlier case of Commonwealth v. Boston, 16 Pick. 442, Chief Justice Shaw considered the St. of 1799, c. 31, § 3, empowering the selectmen to lay out or widen any street, lane or alley of the town, and providing that the owners of» buildings removed for that purpose should receive compensation in the manner pointed out by the acts directing the method of laying out highways, as a clear recognition that these terms, describing the different kinds of ways, “ when used as applicable to this city, are deemed to be synonymous with public ways or highways.” Although the Gen. Sts. e. 44, § 1, requiring towns and cities to keep public ways in repair, mention only “ highways, town-ways, streets, causeways and bridges,” and §§ 21, 22, 26, making them responsible for defects therein, omit “ streets ” from the enumeration, all these sections are manifestly intended to include all ways authorized by general or special statute to be laid out by municipal authority for any kind of public travel, and to charge the city or town for injuries, occasioned by want of repair therein, to any traveller lawfully using them for the purpose for which they are intended and appropriated. In view of the special statutes above referred to, the evidence introduced at the trial, tending to show that City Hall Avenue had been immemorially used by the public as a footpath, warranted the jury in finding that it had been lawfully laid out, by the municipal authorities or otherwise, as a footway, and [306] was a public way by prescription, which the city was bound to keep in repair. Reed v. Northfield, 13 Pick. 94. Williams v. Cummington, 18 Pick. 312. Folger v. Worth, 19 Pick. 108. Commonwealth v. Belding, 13 Met. 10. Jennings v. Tisbury, 5 Gray, 73. If such was the fact, the widening in 1841, by agreement between the city owning the land on one side and the private owner of the land on the other, did not alter the character of the way. No reason therefore is shown by the report before us why there should not be Judgment on the verdict.