Brady v. City of Fall River

121 Mass. 262, 1876 Mass. LEXIS 346

• Court: Massachusetts Supreme Judicial Court
• Decided: November 20, 1876
• Status: Published

Opinion

Colt, J.

The work done upon Brownell Street in 1874 bv the superintendent of streets was not a change of grade, within the meaning of the statute which gives compensation to one who sustains damage in his property caused by raising the highway for the purpose of repairs, to be had upon petition to the selectmen or mayor and aldermen, within one year from the completion of the work. Gen. Sts. c. 44, §§ 19, 20.

The street was first laid out by the mayor and aldermen as a public highway in 1870. In their report of the location, after giving the boundaries, they expressly refer for further description to “ a plan on file in the city clerk’s office.” This plan was filed with the report and has since remained in the custody of the clerk. It plainly shows, upon a horizontal scale, the boundaries of the street, and, upon a vertical scale, the grade line to which it was to be raised and which was evidently contemplated as part of its original construction. Stone v. Cambridge, 6 Cush. 270.

The damages, to which a landowner is entitled upon the original location of a street, include changes in the surface of the land injurious to him, which are required by a proper construction of the way, and also those which are required by the terms of the location. The respondent was therefore properly allowed to show that, in raising the street, the superintendent of streets followed the plan referred to, and raised it no higher than the grade there fixed; in accordance with the order of the board of aldermen requiring the street “to be worked to grade.”

The presumption is that the petitioner either received full damages for the injury complained of, when the street was located, under the Gen. Sts. c. 43, or that he then waived his claim to damages. Snow v. Provincetown, 109 Mass. 123.

Exceptions overruled.