Bishop v. Inhabitants of Medway

53 Mass. 125

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1846
• Status: Published

Opinion

Hubbard, J.

The defendants seek to relieve themselves from the payment of damages for land taken in the laying out of a town way, but which land has never been entered upon, nor possession thereof taken, for the purpose of constructing it; and they rely upon the statute of 1842, c. 86, § 1, and upon the decision of this court in the case of Harding v. Inhabitants of Medway, 10 Met. 465, as sustaining their defence. The difference between that case and the present is, that here the way was laid out by the selectmen, and not by the county commissioners, who were not called upon to act in the premises.

On examination of the statute, we think the language is so precise in limiting its provisions to acts done or directed by the county commissioners, that we are not warranted, by any just rules of construction, to apply it to the acts of selectmen in the laying out or altering of town and private ways, or in the assessment of damage for the same.

The case is not provided for by the statute, and falls within the reasoning and authority of Harrington v. County Commissioners of Berkshire, 22 Pick. 263, and Hallock v. County of Franklin, 2 Met. 558, which, though harsh in their operation, stand upon well acknowledged principles of law; and as those decisions probably called into existence the St. of 1842, c. 86, so it will require further legislation

* to carry into full effect the spirit of the statute, which, we have no doubt, was intended to relieve towns from the payment of damages in all cases, where the land, after a formal laying out of the way, is not actually entered upon and worked for that purpose. Exceptions overruled.

By St. 1847, c. 259, § 4, the provisions of St. 1842, c. 86, are extended to town ways and private ways.