Sullivan v. City of Fall River

Field, J. The distinction between specific repairs upon a highway or town way, ordered under the Pub. Sts. e. 49, § 10, or § 65, and repairing a highway or town way by raising or lowering it, or doing some other act upon it, under the Pub. Sts. c. 52, § 15, was discussed, and the history of these statutes carefully traced, in Sisson v. New Bedford, 137 Mass. 255. Under the provisions of the statutes first cited, the specific repairs are ordered by the persons authorized to lay out a highway or town way, and the damages are to be estimated by them. Pub. Sts, c. 49, §§ 15, 16, 32, 68, 79. The reason for .these provisions appears in the St. of 1835, e. 152, § 7, where they were first enacted in reference to highways. That section reads, “ That whenever a petition shall be presented to the county commissioners to lay out or alter a highway, and they .... shall be of opinion that the existing highway, between the termini named in the petition, can be so far amended as to supersede the necessity of laying out a new highway, or altering the location of existing ways, they shall, after due notice to the towns interested, be empowered and required to direct specific repairs to be made in the existing ways, so as to promote the public convenience,” &c. The commissioners on the revision of the statutes in 1858 recommended a similar provision in reference to town ways; and the Gen. Sts. c. 43, § 59, enact that “ the selectmen of the several towns may lay out or alter town ways for the use of their respective towns; .... or may order specific repairs to be made upon such ways.” When county commissioners order specific repairs upon highways, which occasion damage to persons or property, they are [585] required to “ estimate the same and make return thereof.” Gen. Sts. o. 43, § 15. Pub. Sts. c. 49, § 15. When selectmen or road commissioners order specific repairs upon town ways, the selectmen or road commissioners are to determine the damages. Gen. Sts. a. 43, § 62. Pub. Sts. c. 49, § 68. The intention is, that the repairs to be made shall be specified in the order, so that the condition of the way after the repairs are made can be determined from the order, and the damages can be assessed before the repairs are completed. If damages are not given in the order directing the specific repairs, or in the return made upon it, this is held to be an adjudication that no damages have been suffered; and the party aggrieved may apply for a jury. The Pub. Sts. o. 52, § 15, are, in substance, a reenactment of the Gen. Sts. e. 44, § 19, and of the Rev. Sts. c. 25, § 6; and this provision was inserted in the Revised Statutes in consequence of the decision of Callender v. Marsh, 1 Pick. 418. The purpose of this provision was to give to an owner of property a remedy when the authorities charged with the duty of keeping a public way in repair raised or lowered the way, or did any other act upon it for the purpose of repairing it, whereby his property was damaged. The landowner must file a petition with the selectmen, road commissioners, or mayor and aldermen “ after the commencement and within one year from the completion of the work,” and an adjudication must be made “ within thirty days after the filing of the petition,” and if the petitioner is' aggrieved by the estimate of damages, or by a refusal or neglect to estimate them, he may within one year from the expiration of said thirty days apply for a jury. See Pub, Sts. a. 52, § 16. The damage accrues when the act is done. Page v. Boston, 106 Mass. 84. When, then, a change is made in the grade of a public way in a city, if it is made by an authority competent to fix the grade, and the nature and extent of the change are specifically declared in, and made a part of, the record of the proceedings, the repairs made in accordance therewith are regarded as specific repairs under the statutes first cited. But if the repairs are made or ordered by an authority not competent to fix the grade of the way, or if made or ordered by an authority competent to fix the grade but the order does riot determine specifically the [586] nature and extent of the change to he made, and the way is repaired, either by an actual change of grade or otherwise, under an authority competent to direct the repair of ways, so that they may be safe and convenient for travellers, the damages to property occasioned by such repairs are recoverable under the statutes last cited. Thurston v. Lynn, 116 Mass. 544. Without considering whether, under the charter of the city of Fall River in force when the order of May 18, 1885, was passed, the mayor and aldermen, without the concurrence of the common council, could alter the grade of a street, (see St. 1854, o. 257, §§ 8,14,) we are of opinion that by this order they have not attempted to change or fix the grade of the street, and that it is not an order for specific repairs by lowering the grade of the street. The petitioners have been injured, not by the setting of the curbing, but by the lowering of the surface of the street. The order passed was- simply that granite curbing be laid on the north side of Bank Street, and it is like an order directing a street to be paved, and the cutting down of the grade of the street must be' regarded as a repair of the street by lowering its surface. Whether the grade originally established was abandoned by the city need not be determined. If it was not abandoned, the petitioners’ remedy was under the original taking, and is now gone. If the original grade was abandoned, the -petitioners’ remedy for lowering the actual grade of the street, if they now have any against the city, is under the Pub. Sts. e. 52, § 15. See Cambridge v. County Commissioners, 125 Mass. 529; Mitchell v. Bridgewater, 10 Cush. 411. The ruling of the court that the petition was rightfully brought under the Pub. Sts. c. 49, was therefore erroneous. Apparently the petitioners have never presented any petition to the mayor and aldermen, and therefore cannot maintain the present petition, but, if the fact is otherwise, they can apply for leave to amend their petition. Brown v. Lowell, 8 Met. 172. The facts proved raise a question of law on which the respondent is not concluded by its answer. Exceptions sustained.