Lawrence v. Inhabitants of Nahant

136 Mass. 477, 1884 Mass. LEXIS 141

• Court: Massachusetts Supreme Judicial Court
• Decided: February 29, 1884
• Status: Published

Opinion

Field, J.

The acts done were within the limits of a town way, which the plaintiff contends was not legally laid out, because no sufficient notice of the intention of the selectmen to lay it out had been given to him. It is evident from the facts found in the report, that the plaintiff had substantially the same notice and knowledge of the intention of the selectmen to lay out the way that he would have had if the notice he received had been addressed to him, and the selectmen had known that he was the owner of the land. When notice is delivered to the owner in person, it cannot be necessary to post up a notice. The plaintiff could not, under the facts stated, by a writ of certiorari, quash the order laying out the way. 'If the plaintiff has suffered any injury by the laying out, it has been caused by his own neglect, and he ought not to derive advantage from concealing or not disclosing his title. Pub. Sts. c. 49, § 6. Brown v. County Commissioners, 12 Met. 208. Pickford v. Mayor & Aldermen of Lynn, 98 Mass. 491. New Salem, petitioner, 6 Pick. 470. It is not shown that the laying out was void ab initia.

The complaint that the grade of the way has not been fixed is not made in the bill, and no complaint is made that the boundaries and measurements of the way were not properly set out in the report to the town, or in the plan filed with the town clerk, pursuant to the Pub. Sts. c. 49, § 71.

If the laying out of a common sewer, in February, 1882, was invalid, still, after the way was laid out and accepted, a sewer could be constructed in it by the selectmen, without further notice or proceedings. It appears that the land has been entered upon and possession taken for the purpose of constructing the way. Pub. Sts. c. 49, § 69. Boston v. Richardson, 13 Allen, 146, 159. The plaintiff complains that the acts were done for the purpose of constructing the sewer, and that there is no intention immediately to construct the way, although the intention is to construct it hereafter from time to time, as it can conveniently and economically be done. Upon a part of the way, work has been done for the purpose of constructing the way. There is no statute which requires the construction of a town way, laid out by selectmen, to be completed within any definite time. It is not necessary to consider what remedies the plaintiff has if the defendants unreasonably neglect to complete the construction of the way. The way was accepted on March 18, 1882; the bill was filed in August, 1882; the way has not been discontinued, and the laying out has not become void, under the Pub. Sts. c. 49, § 88. Poor v. Blake, 123 Mass. 543. No authority is shown for enjoining the defendant from constructing a way lawfully laid out. Whiting v. Mayor & Aldermen of Boston, 106 Mass. 89.

Bill dismissed.