Garrity v. City of Boston

Lathrop, J. The provisions of the Pub. Sts. c. 52, §§ 15, 16, under which this petition is brought, were first enacted in the Rev. Sts. c. 25, § 6, and re-enacted in the Gen. Sts. c. 44, §§ 19, 20. As the law stood at the time of the passage of the Revised Statutes, a surveyor of ways might, in the absence of an order of the proper authorities fixing the grade of a way, raise or lower' the grade at his discretion, if such action was necessary to keep the way in repair, or make it safe and convenient for travel. And such is his authority to-day. Callender v. Marsh, 1 Pick. 418. Brown v. Lowell, 8 Met. 172. Mitchell v. Bridgewater, 10 Cush. 411. Burr v. Leicester, 121 Mass. 241. See also Sisson v. New Bedford, 137 Mass. 255. [532] Before the Revised Statutes, however, a landowner who was injured by such a change of grade had no remedy. Callender v. Marsh, ubi supra. To meet this view of the law, which was deemed to be an injustice, the section of the Revised Statutes above referred to was enacted. Brown v. Lowell, ubi supra. There have been many decisions under the section now under consideration, but none of them is decisive of the present case, or throws much light upon it; and it must be decided mainly upon general principles. The grade of Fellows Street was established in 1874, by the street commissioners of the respondent city, and in that year was built to grade; and the buildings abutting upon it, including the petitioner’s premises, were raised to conform to the grade. The petitioner concedes that the damages caused by this raising were, at that time, either released or paid for. Apart from this concession, such would be the presumption of law. Brady v. Fall River, 121 Mass. 262, 264. In 1890, it was found that the whole of the Northampton Street district, which comprises many acres, and includes Fellows Street, had fallen away from the grade established sixteen years before. The agreed facts do not state whether this falling away was sudden or gradual. But we do not think it is material which it was. If an earthquake or a violent storm should cause a change of grade in a portion of a street and in a lot of land, it could hardly be contended that the restoration of the street to its established grade gave the lot owner a right to have his lot restored to grade at the expense of the city. And if the sinking is gradual, we see no reason why the city has not the right to maintain the street at its established grade, without further compensation than it has already paid. The injury to the petitioner’s land arises from the fact that he has not kept his land to the established grade. In our opinion, the statute was not intended to apply to a case like the one now before us. Judgment for the defendant.