Maria Fernald vs. City of Boston, 12 Cush. 574

Shaw, C. J. This is a petition for a jury to assess damages which the petitioner claims to have sustained in her estate by the alteration of Fourth and G streets, in South Boston. The respondents resist the granting of the petition on the ground that the streets in question had never been completed under the act passed March 6, 1804, so as to render them liable for damages, for acts done with regard to said streets in accordance with an order of the mayor and aldermen, passed May 6, 1850.

But the petitioner contends that the proceedings upon the petition of Mosely and others, April 25,1831, were in fact a completion of said streets, in contemplation of the act of 1804, so that she may now claim damages for subsequent alterations in 1850. Before the revised statutes, no claim could be sustained for damages by repairing streets by digging them down or by raising them. Callender v. Marsh, 1 Pick. 418. So the law stood at that time. But the Rev. Sts. c. 25, § 6, changed the law, and provided a remedy for such injury.

The petitioner rests her petition on the revised statutes, and says that the injury, for which damages are claimed, was occasioned by repairing the street and not by laying it out. It becomes necessary, therefore, to consider the nature of the highways in that part of the city. That part of South Boston where the petitioner resides, was formerly a part of Dorchester, and was set off from that town, and annexed to Boston, by

an act passed March 6, 1804. There were several other acts passed at the same time having the same object in view, which was to add a large tract of comparatively vacant land to the town, to be converted into building lots. For the accomplishment of this object it became necessary that a part of the soil should be appropriated for streets and other public uses for the benefit of all.

So a provision was introduced into the act that the selectmen of Boston should be authorized to lay out such streets and lanes through the land thus added to the town, as might be for the common benefit of the proprietors, and these provisions were added: viz., that no damage or compensation should be allowed -to any proprietor, for such streets and lanes as should be laid out within twelve months, and that the town should not be obliged to complete such streets and lanes sooner than they might deem it expedient so to do. These provisions are of great importance.

But why was this large amount of land for streets and other public purposes taken without compensation to the proprietors. A compensation was doubtless obtained in the increased value of the house lots, and the legislature acted on the belief that these provisions were made with the assent of all of the proprietors. It was thought best that this laying out should be made by the town ; and, by a special law, the selectmen had authority to lay out streets and lanes without going to the town, so that no vote of confirmation by the town was necessary.

But it was thought to be unreasonable that the town should be compelled to put these streets in order until the increased travel, and a due regard to public convenience, as the territory should become more ana more settled, should require it. The selectmen were authorized to lay out streets prospectively, but they were not obliged to complete them until such time as they might deem it expedient to do so. This laying out made them streets, but the act exempted the town from the obligation to “ work ” them.

The streets were laid out according to Withington’s plan, within the year from the passage of the act, and so by the terms of the act no compensation was to be allowed to the proprietors. The streets in question were laid out under the act passed Mal-ch 6,1804. Have they been completed, so that the work done in 1850, of which the petitioner complains, was a repair, for which damages may be claimed under the revised statutes; or, was that work a completion of the original laying out, for which the proprietors can claim no compensation ?

By the word “ complete,” as used in the act passed in 1804, we do not suppose was intended that condition of the streets in which they are made smooth and finished, but some work by which they are made streets de facto. The petitioner says that in 1831, these were made streets de facto; and the court are of opinion that the votes then passed, and the work then done under them, did make them streets from that time. The petition of Mosely and others, in 1831, was that the main road as laid out from the village to the point may be made.

That petition was referred to aldermen Russell and Bent, who reported that the order of the selectmen of Boston, passed February 27,1805, accepting and laying out Fourth street, be carried into execution. This report was accepted, and Fourth street is the street in question. But it is said that the report does not refer to that part of the street in question, but only to a section.

There is, however, no such restriction in the report, which includes Fourth street as “far as the same now remains unfinished.” We think that the vote of the mayor and aldermen was, that the street laid out in 1805, and which had remained a provisional street up to 1831, should then be made a street de facto. It was so made, and some years after the petitioner built her house there. In 1850, the city resolved to improve the street for the accommodation of the increased travel in that part of the city, and in so doing, made the alterations for which the petitioner claims damages.

This improvement was an alteration or repair after the street had been “ completed ” in 1831, and so does not fall within the original restriction of liability in the act of 1804. Petition granted.