Stowell v. Board of Public Works

Hammond, J. This is an action of tort in the nature of trespass for entering upon the land of the plaintiffs and cutting down and carrying away certain trees and shrubs growing thereon and doing other acts more particularly described in the declaration. It appeared that the acts complained of were done by the defendants acting under the order of April 23,1894, passed by the proper authorities, purporting to lay out a public street over the locus; and it was not denied by the plaintiffs that in the construction of the street the acts were reasonably necessary. The plaintiffs contend that the order was “ defective in that no time [418] was given in which to remove the walls, fences and trees,” and further, that “ even if it should be said that the lay out was not invalid in whole or in part, it was still the duty of the board ” before entering upon the land to give notice to the plaintiffs to remove the walls, fences and trees; and that since no such notice was given the entry was a trespass. Upon the facts shown in this case, the board by which the order was passed had jurisdiction over the subject of the laying out of the street, and even if the order was defective by reason of its failure to name the precise time within which the owner might remove the walls, fences and trees, its validity cannot for that reason be attacked collaterally. Certiorari is the only proper remedy. There is a difference in this respect between the proceedings of a town and those of a board like this. Robbins v. Lexington, 8 Cush. 292. Taber v. New Bedford, 135 Mass. 162. Foley v. Haverhill, 144 Mass. 352, and cases there cited. The order therefore must stand, and it furnishes a legal justification for such acts of the defendants as were reasonably necessary for the construction of the street. Under the form of the report it is not necessary to consider whether the fair construction of the order is, as claimed by the defendants, that the owner should have a reasonable time to remove his property and that such time had elapsed before the defendants committed the acts complained of, because, even if by reason of lack of notice to remove, the plaintiffs were entitled to the value of the things removed, the damages for the loss are not recoverable in an action of tort, but they would form a part of the sum recoverable in a petition under the statute for damages occasioned by the laying out of the street. White v. Foxborough, 151 Mass. 28. The ruling that upon all the evidence the plaintiffs were not entitled to recover was right, and in accordance with the terms of the .report judgment is to be entered for the defendants. So ordered.