Nute v. Boston Co-Operative Building Co.

Devens, J. The plaintiff owns the land on one side, and the defendant on the other side, of a passageway in the city of Boston, commonly known as Andrew Place. Both parties derive their title from the city, and have a title in fee to the centre of the passageway, and a right of way through its whole length. Tobey v. Taunton, 119 Mass. 404. Gould v. Eastern Railroad, 142 Mass. 85. The city was formerly the owner of a large tract of land which included these parcels, and on July 24, 1868, before the parties acquired their titles, the committee on public lands of [468] the city council voted “ that a passageway sixteen feet in width be laid out between Canton and Dedham Streets, so as to make the lots ninety-two feet in depth,” which action was afterwards approved by the mayor. While this committee was “authorized to lay out and make such streets, passageways, and squares on the public lands, to lay sewers therein, . . . subject to the approval of the board of aldermen,” this action of the committee was not shown to have been approved by the board of aldermen. The city has posted, and keeps, at each entrance of Andrew Place a notice: “ This is a private way. Dangerous passing.” The defendant has built and maintains a brick sidewalk four feet wide along the line of its premises on Andrew Place, erecting posts near the outer edge thereof. The plaintiff is a teamster, and the sidewalk interferes with his use of the way, with his horses, carts, and caravans. If the defendant is entitled thus to interfere with the plaintiff’s use of the way by diminishing its width, and appropriating a part of the passageway to the use of foot-passengers, the sidewalk as constructed is found to be a reasonable one. The defendant cited the St. of 1849, c. 138, and contended that under that statute it was its duty to maintain a sidewalk in Andrew Place, and also contended, independently of the statute, that the construction and maintenance of the sidewalk was a reasonable and proper use of the passageway, which it had a right to make. By this statute it is enacted as follows: “ When any street or way which now is or hereafter shall be opened in the city of Boston, over any private land, by the owners thereof, and dedicated to or permitted to be used by the public before such street shall have been accepted and laid out according to law, it shall be the duty of the owners of lots abutting thereon to construct convenient sidewalks on each side of such street or way, at their own expense, in such manner as the safety and convenience of the public shall, in the opinion of the mayor and aldermen of said city, require.” Provision is then made, that oh neglect or refusal the mayor and aldermen may construct the sidewalk, and assess the expenditure on the abutters, which assessment shall be a lien on their estates; that the act shall not affect any agreement heretofore made respecting such street or way between the owners and the [469] city; and that the construction of the sidewalk by the city shall not be construed as an acceptance of such way. We assume, without so deciding, that this act of 1849 is still in force, and was not repealed by the St. of 1872, c. 808 (Pub. Sts. c. 50, § 22). Attorney General v. Boston, 142 Mass. 200. It is urged by the defendant, that, to be within the statute of 1849, a way must be opened in the city of Boston over private land by the owners; that this passageway is such a way, as it was opened by the city, through the committee on public lands, for the purpose of selling its land; that it was not laid out nor accepted according to law; and that it was dedicated to, or permitted to be used by, the public; and thus that, as all these conditions existed so far as Andrew Place was concerned, it was its statutory duty to build the sidewalk. But even if, upon an unaccepted street of this character, the mayor and aldermen may compel an abutter, or all the abutters, to build sidewalks, if the safety or convenience of the public, in their opinion, so requires, in such manner as they see fit, such authority on the part of the city does not impose upon the abutter upon a passageway of this description any duty to build a sidewalk for his own convenience or otherwise, or invest him with the right thus to narrow the carriageway. If the defendant had invoked the action of the mayor and aldermen, and they had directed the construction of this sidewalk, quite a different case would be presented. They are not required to order sidewalks to be built where the way is not to be laid out and accepted, and where no reasons of public safety or convenience demand it. Nor are we of opinion that this way can properly be said to be one “ dedicated to or permitted to be used by the public.” While the defendant does not urge that the evidence shows a dedication, it contends that the evidence does bring the passageway under the alternative clause of a way “ permitted to be used by the public.” In the connection in which it is used, this phrase means a permission of such a character as would have established, or afforded evidence sufficient to establish, a dedication before the St. of 1846, c. 203 (Pub. Sts. c. 49,'§ 94). While the way is found to be “ a thoroughfare considerably used.by various teams and vehicles, both calling at the defendant’s houses and passing through, including ice, milk, and city carts, grocer [470] wagons, and lumber teams,” its principal use is evidently for the purpose of bringing supplies to the defendant’s houses thereon, although incidentally some vehicles pass through. No abutter has a right to close the passageway, and prevent this use, as he would thus interfere with the rights of others, and this enjoyment of the way is by those who are notified distinctly that it is a private way which they are using, and that the passing thereon is dangerous. This notice does not, indeed, in terms forbid the public to enter upon it, but informs them that they cannot use it as of right. ■ The defendant further contends, that, independently of the statute, it is fully authorized to build and maintain the sidewalk. A sidewalk necessarily implies a change in the grade of that part of the street where it is laid, as the very object is to elevate that portion of the street above the rest. Where it is guarded by an abrupt curb, as was the sidewalk of the defendant, it would necessarily prevent the use of that part of the way by teams, and, in addition, there was also a row of posts near the edge. Such a sidewalk might be entirely reasonable in itself, and yet sensibly interfere with the use of the way by teams. It is found that it prevents the plaintiff from turning his vehicles so as to drive from the door of his stable in one direction along’ the passageway without unhitching his horses, lifting the pole of the wagon over one of the posts, and again attaching them; and that sometimes this has to be done a second time. The plaintiff testifies that sixteen feet is necessary to turn his water carts into or from the stable, while it also appears that he uses wagons longer than this. Even if he has another entrance and exit for his teams on Dedham Street, upon which his stable fronts, so that his use of the passageway in question is not one of absolute necessity, he ought not to be deprived of this passageway, or have his rights therein materially diminished. In Richardson v. Pond, 15 Gray, 887, the plaintiff prescribed for a way through a gate defined by fixed limits. It was held, that if the erection of an iron post fixed in the ground, in place of a short bar of iron fastened to the building, “ caused the way to be narrowed, so that the new gate erected by the defendant furnished a passage less convenient and useful to any appreciable extent for practicable purposes than the old gateway,” it [471] would constitute an obstruction of tbe right of way. In Killion v. Kelley, 120 Mass. 47, it is held to be well settled that, “ where there are several owners in common of a private way, each owner may make reasonable repairs which do not injuriously affect his :co-owners, but he cannot make any alteration of the course of the way, or any change in its grade or surface, which makes the way •less convenient and useful to any appreciable extent to any one who has an equal right in the way.” The plaintiff is therefore entitled to a decree ordering a removal of the sidewalk, and for such damages for its maintenance as may be assessed by a master. Decree accordingly.