Pickford v. Mayor & Aldermen of Lynn

Wells, J.

The first objection alleged against the legality of the proceedings of the mayor and aldermen is, that the petitioner was not notified of their intention to lay out the street. It appears that no formal notice was served upon her, and she had no actual notice of the intended laying out of the street. Bui *496 it also appears that she acquired her title after the commencement of the proceedings; that the mayor and aldermen had no knowledge of this change of title ; that Tolman, her father, purchased the land for her, had charge of it, and “ was her full agent in respect thereto ; ” and that Tolman was fully informed of all the proceedings, had formal notice to himself as one of the abutters, and held “ several unofficial conversations with the mayor and other members of the board in relation to the laying out of the street.” This is, substantially, notice to the petitioner, and is a sufficient answer to her complaint. If formal notice, addressed to the petitioner, had been left with Tolman as her agent, it would have been sufficient, although never communicated to her personally. Yet Tolman had all the information which such a notice would have given him. The writ of certiorari is given to prevent manifest injustice, and not to enable a party to avoid the proceedings of an inferior tribunal for technical errors. Stone v. Boston, 2 Met. 220 . The petition is addressed to the sound discretion of the court; and, even when formal errors exist, the writ will be refused if no wrong or substantial injury is occasioned thereby to the petitioner. When the failure to give notice is without fault on the part of the tribunal acting in the laying out of the way, and is occasioned by want of knowledge of a title acquired during the pendency of the proceedings, it would be unfair and injurious to the public interests if such omission were to be held as fatal to the whole proceedings.

The second objection is, that the street was not laid out by the mayor and aldermen with the concurrent vote of the common council, in accordance with the St. of 1861, c. 107. This objection is founded upon the fact, that, in concurring with the action of the mayor and aldermen, the common council adopted certain amendments, which were afterwards agreed to by the mayor and aldermen; whereas the argument of the petitioner is, that no action of the common council is proper except to agree or disagree to the propositions sent to them from the mayor and aldermen. We do not think the statute is to be construed thus strictly. The purport of it is, that all proceedings for the laying out of ways must originate and be first acted on by the mayoi *497 and aldermen. But if the concurrence of the common council be accompanied with proposed modifications, not of the location, but in matters incidental to it, and such modifications be agreed to by the mayor and aldermen, we cannot think that such action should operate to invalidate the whole proceedings. It is urged that this would enable the common council to assume the control of the location of streets, which the statutes intend shall be exercised exclusively by the mayor and aldermen. But they may do this, if they see fit, equally well by the exercise of their simple negative upon the action of the mayor and aider-men, until the location and all the orders connected therewith are made to conform to the views of the common council. On the other hand, the mayor and aldermen may prevent any such direct interference with their action, by refusing to agree to the modifications proposed. In either mode, the common council, having the power to defeat all action, may assume to exercise discretion and authority not intended to be intrusted to them. The argument from possible consequences, therefore, is without force.

In this ease all the proceedings relating essentially to the laying out of the street originated in the board of mayor and aider-men. The modifications proposed by the common council affected only the time to be allowed for the removal of buildings. The petitioner is not interested in those buildings, and it does not appear that her rights are in any respect affected by the modifications so made. Whether they were properly made or not, we do not think they afford any sufficient ground for the petitioner to claim this writ.

The third ground is, that the record of the laying out of the street is invalidated by its own provisions in regard to the removal of buildings, and the time limited for the payment of damages. Five years were allowed certain abutters within which to remove buildings that were upon the strip of land taken to widen the street, unless previously destroyed by fire; and, in case of one of the abutters, the damages were awarded him upon condition that they were not to be paid in the event rtf his building being destroyed by fire within the time and be *498 fore removal. By the Gen. Sts. c. 43, §§ 14, 63, it is provided that “ the damages awarded shall not be paid until the land is entered upon and possession taken for the purpose of constructing the way.” The St. of 1862, c. 203, provides that the laying out “ shall be void against the owner of any land over which the same shall be located, unless within a reasonable time, not exceeding two years after the same shall have been laid out or altered, possession shall be taken of such land for the purpose of constructing such highway,” &c., “ or the damages awarded the owner of the land shall be paid or tendered.” The petitioner contends that the laying out is wholly void, because, under the order of the city council, no possession, for the purpose of constructing the way, can be taken of the land covered by the buildings within two years; and, under the provisions of the General Statutes, no payment or tender of the damages awarded can be made until such possession is taken. It was suggested in Shaw v. Charlestown, 3 Allen, 538 , that the provisions of the Gen. Sts. c. 43, §§ 14, 63, do not apply to cities. But § 81 of the same chapter was probably overlooked; and, as that case did not depend upon the General Statutes, we are not disposed to decide this case upon that ground. We are inclined to the opinion that the St. of 1862, c. 203, so far modifies the provisions of the General Statutes as to authorize the payment of damages, in order to secure the public right from being defeated, where the possession is delayed for any cause not implying an abandonment of the way. But in this case the damages to be paid to one of the abutters are not fixed, and cannot be ascertained until the expiration of five years, unless the building should be previously destroyed by fire or voluntarily removed by the owner. It is necessary, therefore, to determine the force and effect of the St. of 1862, c. 203. Previously to the St. of 1842, c. 86, and the St. of 1847, c. 259, the landowner might recover his damages immediately upon the adjudication establishing the way, although no road should ever be constructed and no possession ever taken for the public use. After those statutes, and under the General Statutes, the way could be established and remain indefinitely subject to the right of the public at any time *499 to enter and construct a road, and thus the landowner be deterred from any beneficial occupation of the land, while he was also deprived of his damages until actual entry for the purpose of constructing the road. This seemed to operate unjustly upon the landowner, as it subjected his land to a quasi servitude for an unlimited period without compensation. The evident pulpóse of the St. of 1862, c. 203, is to secure to the individual landowner either the payment of his damages or a release of his land from the servitude within a reasonable time. Hence the language of the statute, which declares that the laying out, &c., “ shall be void as against the owner of any land over which the same shall be located,” unless “ possession shall be taken of such land,” &c. No one but the owner of such land can avail himself of the statute to avoid the location of the way. Even against him, the laying out is valid until the time fixed by the statute has expired; and he may not choose to avail himself of his right afterwards to avoid it. If it were otherwise, and the statute were held to make the laying out void as to every one, as well as against the landowner affected, yet the petitioner would have no right to have it vacated now. The two years have not expired ; and it is not impossible that the buildings may be removed or destroyed by fire within the period, or that some different mode of compensation may be agreed on and accepted, so that all the conditions of the statute will be complied with. It is undoubtedly in the power of the city council to rescind their order which postponed payment beyond the two years.

In this view of the case it is unnecessary to consider the agreement of Proctor and others to waive all claim for damages and notice of laying out. Petition dismissed.