Shaughnessy v. City of Brockton

92 N.E. 1001, 207 Mass. 123, 1910 Mass. LEXIS 733

• Court: Massachusetts Supreme Judicial Court
• Decided: November 22, 1910
• Status: Published

Opinion

Sheldon, J.

Under the agreement of the parties, the only question raised is whether the work done in front of the petitioner’s estate was done under the order for the original layout of the street made in 1883 or as an independent proceeding under the order of 1905.

It could not have been ruled as matter of law that the work was done under the original layout. Cambridge v. County Commissioners, 125 Mass. 529. Albro v. Fall River, 175 Mass. 590, 592. The agreed facts provided that inferences might be drawn from the facts stated, and the order of 1883 was put in evidence.

The judge certainly was warranted in finding that as to that part of the street on which work was done under the order of 1905 the city had abandoned the mode of construction prescribed in 1883, as was done in Como v. Worcester, 177 Mass. 543. We cannot say that the rulings made at the trial were not based upon such a finding. If so, they were correct.

Moreover, the order of 1905 does not purport to be an order for the completion of the original construction begun under the layout of 1883. It seems rather to have been made under the provisions of R. L. c. 49, § 42. The clause that the cost of the work in front of the estate of each abutter should be reported to the board of aldermen bears out this view.

We see no error in the rulings made at the trial.

Fxceptions overruled.