Proctor v. Stone

Barker, J. The plaintiffs seek damages because the defendants have raised the surface of the street upon which their lands abut. The defendants justify as agents of the town, which is empowered by the Pub. Sts. c. 52, § 13, to intrust to committees the making or repair of roads, and if the defendants have done only what the town commissioned them to do they are not liable to the plaintiffs, unless the town itself was not justified in raising the surface of the street. It was originally held that all damages occasioned by a change in the grade of a way were fully paid and satisfied at the time of its location. Callender v. Marsh, 1 Pick. 418. But now, owing to alterations made by statute, if any change of grade made either by the adjudication of a tribunal authorized to alter the way or to order specific repairs, or occasioned by work done in making or keeping it safe and convenient for travel, does damage to land situated on the way, the owner may have compensation. Pub. Sts. c. 49, §§ 14-16, 65, 68, 73, 79, 84-87; c. 52, §§ 15, 16. Burr v. Leicester, 121 Mass. 241. Bemis v. Springfield, 122 Mass. 110. Sisson v. New Bedford, 137 Mass. 255. Sullivan v. Fall River, 144 Mass. 579. Changes of grade are of two general classes: one where a grade other than that which has before existed is prescribed by boards or officers who have jurisdiction to order alterations or specific repairs ; the other where the change occurs, without an adjudication, in so repairing the way as to make or keep it safe and convenient, and to better adapt it for uses for which it had before been intended. The former is not in a strict sense a repair, but a permanent change or alteration, as when a road is lowered or raised to pass under or over a railroad, and is [568] really a substitution of one way for another, although both are within the same location. As held in Bemis v. Springfield, 122 Mass. 116, such radical changes are not to be made in the discharge of their ordinary duties by highway surveyors, or other officials or agents charged merely with keeping roads in repair, but are ordered by county commissioners or municipal governments under statute powers which are exercised in formal proceedings prescribed by the statutes. In the case of county ways this jurisdiction is in the county commissioners, under the Pub. Sts. c. 49, §§ 1-12, although in cities concurrent jurisdiction is usually given to city governments. In the cases of town ways and of private ways authority to institute such proceedings is given by the Pub. Sts. c. 49, § 65, to selectmen and road commissioners. Neither the statutes nor the decisions have attempted to draw the line between changes of grade which are such radical alterations as to require an adjudication, and those which may properly be made in the prosecution of the work of ordinary repair. It is usually of no importance to have a line of distinction established ; for in either case, if the change causes damage to lands situated on the way, a remedy is given in the one case by an assessment by the tribunal which orders the change, Pub. Sts. c. 49, §§ 14, 15, 68, and in the other by petition of the party aggrieved, brought within one year after the completion' of the work. Pub. Sts. c. 52, § 15. If the plaintiffs here had prosecuted their statute remedy, their right to recover in one or the other of these modes, if their land was in fact damaged, would have been clear. But as they have seen fit to sue the individuals who did the work, they must show that the acts which have damaged their land were beyond the authority given by the town, or that the town itself acted without right. The statement of facts shows that when the defendants began work there were two street railway tracks in the centre of the street, with the space between them and for some inches on one side paved and raised about eight inches above the rest of the street, which was unpaved. In this condition the way was not safe and convenient for travel, since vehicles could not cross it without danger, and yet this was precisely the condition in which the town, when it directed the defendants to do the paving, anticipated that the street would be. It was necessary to [569] repair it to fit it for travel, and the facts state that the committee repaired it in a manner proper and usual under such circumstances, and in so doing they did only what they were expected and directed by the town to do. But as the agreed facts state that the street was a- public highway, and show no adjudication or order for such a change of grade as is contemplated by the statutes authorizing county commissioners or municipal governments to alter ways, or to order specific repairs, unless the changes made by the defendants were repairs which may be made without such an adjudication they were not within the power of the town to vote. It is not stated that the grade of the way had been previously fixed by any tribunal, and this is not to be inferred. In the absence of an established grade, the town by its highway surveyors, or by any agents whom it saw fit to employ, could make such reasonable changes in the surface of the street as were necessary to make it safe and convenient for the usual travel. It was within its power so to repair the street as to adapt it to the uses for which it-had before been intended. The granting of the relocation to the street railway company seems to have been within the power of the selectmen. The width of the street is not given, but before the relocation there Were two street railway tracks, which were so relocated as to occupy its centre. It cannot be said, as matter of law, that a relocation which directed these tracks when changed to the centre of the street to be raised eight or ten inches above their former grade was in excess of the power conferred by the Pub. Sts. c. 113, § 22, authorizing selectmen to alter the location and position of such tracks. Roads are often crowned to that height. In our opinion, the whole change was riot such a radical alteration of the way as to be beyond the limit of proper repairs. The street had before been used both for ordinary travel and for street cars, and it is agreed that the changes were a public benefit. If they in any way injured the plaintiffs’ land, they had a remedy by petition to the selectmen, under the Pub. Sts. c. 52, § 15, and we see no reason why they should be allowed to recover of the defendants, who were servants of the town acting within the scope of their authority in making repairs which the town had power to make. See Kennison v. Beverly, [570] 146 Mass. 467, 469. Allen v. Gardner, 147 Mass. 452. White v. Foxborough, 151 Mass. 28, 42. Collins v. Waltham, 151 Mass. 196. Woodbury v. Beverly, 153 Mass. 245. Judgment affirmed.