Murphy v. City of Boston

Colt, J. The street commissioners, by an order of the board, laid out or- attempted to lay out and fix the grade of Silver Street. The petitioner claims, in her petition, damages for the change of grade only, alleging that the order was only effectual to change the grade of an existing way, which, though not shown by the record to have been laid out or accepted by the public authorities, had nevertheless been used by the public from time immemorial, and had become a public highway within the meaning of the statute. Jennings v. Tisbury, 5 Gray, 73. The street commissioners of Boston have all the powers formerly exercised by the board of aldermen in the “laying out, altering or discontinuing the streets and ways of said city.” St. 1870, e. 337, § 2. They may, under these powers, doubtless make changes in the surface required by the proper original construction of a street laid out by them, for which a landowner may have compensation in the damages awarded for the taking. Snow v. Provincetown, 109 Mass. 123. But the commissioners have no authority to change the grade or make repairs upon a street already existing; and if it be true that Silver Street was a public way at the time of the order in question, then the action of the commissioners was of no effect, and the city cannot be made responsible for any unauthorized change of grade which followed upon the facts here presented. If, on the other hand, Silver Street was in fact first laid out and established by that order, then the petitioner’s remedy is by application for an assessment of damages occasioned by the lay 421 ing out of a street, which will include damages for a change of surface caused by its original construction. Gen. Sts. c. 48. Hartshorn v. Worcester, 113 Mass. 111. Ryan v. Boston, 118 Mass. 248. Barker v. Taunton, 119 Mass. 392. Geraghty v. Boston, ante, 416. Judgment for the respondent.