Mayo v. City of Springfield

C. Allen, J.

The only question in these cases is whether it was lawful to build the street in such a manner that the embankment would extend upon and occupy the land of Mayo, outside of the limits of the street as laid out. If this was lawful, the city is entitled to prevail in both cases; if unlawful, it is not disputed by the city that Mayo might properly remove the earth put upon his land, and maintain an action against the city for the trespass in placing it there.

The statutes of the Commonwealth provide that, when highways or town ways are laid out, a description of the location and bounds thereof, within the limits of the towns in which they lie, shall be transmitted to the town clerks and recorded in a book kept for that purpose. Gen. Sts. c. 43, §§ 13, 74. Pub. Sts. c. 49, §§ 9, 80. The damages to which the owner of land taken for a way is entitled, are necessarily assessed with reference to the location as made.

*13 In Franklin v. Fisk, 13 Allen, 211 , Mr. Justice Chapman said: “ When highways are established, they are located by the public authorities with exactness, and the easement of the public, which consists of the right to make them safe and convenient for travellers, and to use them for public travel, does not extend beyond the limits of the location.” And again: “Neither his [the surveyor’s] office nor the existence of the highway gives him any authority to meddle with land outside the limits of the highway.”

In Simonds v. Walker, 100 Mass. 112 , a highway was laid out with a location, for its whole length, three rods wide, and “ from stone monument No. 8 to stake No. 14 all the land between the location of three rods wide and the Ashburnham road is taken for materials and slope.” Mr. Justice Hoar said : “ How 6 taken ’ ? In the only way, most reasonably, in which it could lawfully be taken, — as a part of the road which they were defining. To say that it is taken ‘ for materials and slope ’ is only to give the reason why the road should be wider at that part than elsewhere. It is as if they had said: The whole road is to be three rods wide; and as between monument No. 8 and stake No. 14 it is necessary that it should be wider, to furnish a proper slope for the road bed, and the materials required for its construction, in addition to the three rods there is taken at that place all the land to the Ashburnham road.” And again, in an earlier part of the opinion, he said: “ The commissioners were laying out a highway, and had no authority to take land beyond the limits of the location.”

In the present case, the street as laid out was forty-one feet wide, and the damages for taking land must have been assessed with reference to the determination of the public authorities, that only that width was necessary. Within the located limits, it was competent for them to establish the grade at such height or depth as they pleased; but they were not at liberty to occupy more land than was included in the location. It may be inferred from the agreed statement that the original grade was afterwards changed; but, whether changed or not, it was established in 1874 at a height which required an embankment, and in working the street up to its established grade, no bank wall *14 was built or other means used by the city to keep the earth from sloping off from the street on to Mayo’s land, but it was allowed to form a natural slope from the street down on to said land, covering it at a distance of not less than from five to fifteen feet beyond the line of the street. This was an occupation and appropriation of Mayo’s land for which he was not entitled to damages at the time the street was laid out.

It is true that another section of the statutes provides that, “ when an owner of land adjoining a highway or town way sustains damage in his property by reason of any raising, lowering, or other act, done for the purpose of repairing such way, he shall have compensation therefor, to be determined by the selectmen or mayor and aldermen,” with whom a petition shall be filed for the purpose. Gen. Sts. c. 44, § 19. The city of Springfield contends that under this section Mayo might have filed his petition for damages resulting from the acts of which he complains. But this provision of the statute contemplates only lawful acts done within the limits of the highway as laid out. If in raising or lowering a highway it is necessary also to widen it, by reason of making an embankment or excavation, it is the duty of the public authorities to ascertain and determine how much more land is required for the purpose, in order that the owner of property which is taken for the public use may be informed of the extent to which it is proposed to deprive him of his rights, and may be paid accordingly. The statutes contain ample provisions for this method of procedure. Gen. Sts. c. 43, §§ 1, 6, 9, 13, 65, 68, 71. St. 1868, c. 264. If Mayo sustained any damages by reason of the raising of the grade of the street, within its located limits of forty-one feet in width, his only remedy for such damages was by petition filed with the mayor and aldermen, as provided in the Gen. Sts. c. 44, § 19. But, no provision having been made for taking'his land for the purpose of widening the street, and no determination having been made how much of his land was required for that purpose, no remedy was afforded to him by the statutes by petition for an assessment of damages, and the act of using his land for the purpose of extending the embankment upon it must be regarded as unlawful. The incidental remarks of the court in Mitchell v. Bridgewater, 10 Cush. 411 , to which our attention has been called, are not to be *15 regarded as a judicial determination that, under such circumstances, the owner of land so used would have a remedy by such a petition.

It follows, that, under the agreement of the parties, the first case is to be referred to an assessor, to find the amount of damages, and that, in the second case, judgment is to be entered for the defendant.

Ordered accordingly.