Guild v. Shedd

Knowltoh, J. Section 94 of the Pub. Sts. c. 49, which is a re-enactment of the St. of 1846, c. 203, § 1 (Gen. Sts. c. 43, § 82), is as follows: “No way opened and dedicated to the public use, which has not become a public way, shall be chargeable upon a city or town as a highway or town way, unless the same is laid out and established by such city or town in the manner prescribed by the statutes of the Commonwealth.” Since the passage of this act, a public highway or town way cannot be created by dedication in this Commonwealth. The statute says, in effect, that the acceptance by the public authorities, which has always been an element essential to the creation of a highway or town way by dedication in Massachusetts, can be shown only by a laying out or establishment of the way by the city or town in the manner prescribed by the statutes. The defendants contend that the effect of this section is limited to an exemption of the town or city from the charge of supporting the ways therein mentioned, and from liability for damages to a person injured by reason of defects in such ways. But so to hold would be to disregard and nullify the provisions of the Pub. Sts. c. 52, which require highways and town ways to be kept in repair at the expense of the town, city, or place in which they are situated, and which create a liability in a city or town for damages caused by a want of repair in such ways. Such a construction of the law would permit the existence of public highways and town ways the entrances to which it would be the duty of the authorities of the city or town under the Pub. Sts. c. 49, § 95, to close up or designate as dangerous. The ruling at the trial was in accordance with views repeatedly expressed by this court, and we are of opinion that it was correct. Bowers v. Suffolk Manuf. Co. 4 Cush. 332, 342. Jennings v. Tisbury, 5 Gray, 73. Hayden v. Attleborough, 7 Gray, 338, 343. Morse v. Stocker, 1 Allen, 150. Hayden v. Stone, 112 Mass. 346. Commonwealth v. Coupe, 128 Mass. 63. Veale v. Boston, 135 Mass. 187. ."Exceptions overruled.