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Inhabitants of Needham & others v. New York and New England Railroad
Field, J. Although the surveyors of highways may remove “ whatever obstructs or encumbers a highway or town way, or hinders, incommodes, or endangers persons travelling thereon,” (Pub. Sts. c. 52, § 10,) they have no rights of property in the public ways, and cannot, as surveyors, maintain suits against persons who obstruct the ways.
When a public way is obstructed so as to constitute a public nuisance, the remedy at law is by indictment, and in equity by an information by the Attorney General, or by some other officer representing the Commonwealth.
When the interference with a public right of way is of such a nature that a town may be put to expense in repairing the way, or may be liable in damages for injuries received from the obstruction, or when the town owns the fee of the land under the way, and the interference is by digging up or removing a part of the land, there are intimations, if not decisions, in our reports, that suits therefor may be maintained by the town.
See Springfield v. Connecticut River Railroad, 4 Cush. 63; New Salem v. Eagle Mill Co. 138 Mass. 8; Quincy v. Boston, 148 Mass. 389, 390. What constitutes a special damage to a town, whereby it can maintain a suit in this class of cases, has never been very carefully considered. It is, however, enough for this case to say, that the bill alleges no special damage to the inhabitants of Needham distinct or different from that suffered by the public generally.
If the nuisance described is one which requires the interposition of a court of equity, the proceedings must be taken by the Attorney General, or by some officer who represents the Commonwealth. Attorney General v. Metropolitan Railroad, 125 Mass. 515. Attorney General v. Jamaica Pond Aqueduct, 133 Mass. 361. Decree dismissing the hill affirmed.