Shaw, C. J.
The present is an action of trespass quare clausum fregit, alleging an unlawful entry into the close of the plaintiff, and pulling down certain fences.
The defence is, that the plaintiff erected fences on and across two highways in South Boston, called Broadway and * street: that these fences were an obstruction to the high[294]*294way, and nuisances; and that the defendant, as city marshal, removed them, as it was his duty to do. The plaintiff denies that the places where the fences were erected were highways.
The specification of defence states, that the defendant would contend, that the place in question was a public highway, first, by regular laying out; and second, by dedication. Upon these issues the case was tried.
This is certainly a question of much interest and importance to the prosperity of that great section of the city. It is said, that these fences were put up by the plaintiff, with a view to this suit, in order to test the validity of the acts of the selectmen, done nearly half a century ago, in laying out highways over that whole peninsula. If this is so, it confirms the remark just made, as to the importance of the case ;. and it is only to be regretted, that the case comes before this court upon points so meagre and technical, and embracing in so small a degree the merits of the question.
The judge having ruled at the trial that the proceedings of the selectmen of February 27th, 1805, were not a legal and valid laying out, for want of notice appearing upon the face of the record, went on with the trial of the cause, on the question of dedication.
The first exception of the plaintiff was taken to any proof of the acts and declarations of Jonathan Bird, a predecessor under whom the plaintiff claims.
If dedication can be proved at all, it is by matter in pais, and not by deed, and must consist of the acts and accompanying declarations of the owners of the land alleged to be dedicated. If this special dedication could be proved, it must be done by the acts of the owners of the land, in connection with the annexation of Dorchester Neck to Boston, and the proceedings incident thereto; and this was effected by the act of annexation passed March 6th, 1804. Bird continued to be owner of the land, now owned by the plaintiff, till December, 1804. He then sold his estate to William Scollay, but immediately took back the same estate to hold in fee and in mortgage. Afterwards his executor entered for [295]*295condition broken, and he, or those claiming under him, foreclosed the mortgage, so that he or they came in of the old estate of the mortgagee. The fact, therefore, that Bird sold to Scollay, made no difference, and the facts show, that Bird was seized during the whole of the period in question, and was the absolute owner from the time of the annexation to the 6th of December, 1804. We think, therefore, that the proof of his acts was rightly admitted.
The next exception of the plaintiff was to the direction of the judge, that, under the facts proved, if the city had begun to complete the streets, and had bestowed any labor upon any part of them, the soil of which belonged to the plaintiff, it was unlawful for him to erect the fence after-wards, and the defendant was justified in tearing it down; and that the passing of any vote by the city, appropriating money for the streets of South Boston, and the expenditure of any part of the money so appropriated by a city officer, or by a committee intrusted with the expending of the money, on the premises in question, was the act of the city within the meaning of the instruction.
We can perceive no legal objection to this charge, though it does not appear to us to be of the importance attributed to it. It does not appear, that the judge was requested to direct what constituted a dedication, or if he gave any such direction, that any exception was taken to it. By the charge thus stated, therefore, we understand him as intending to say, that if the facts proved manifested an intention of the owners of the soil to dedicate it, these acts of appropriating money and labor manifested an intention on the part of the city to ac cept such dedication, and made the place in question a complete highway, so that the obstruction of it was a public nuisance. Probably, the occasion for this direction was this, that, although by the act of annexation, the selectmen were authorized to lay out streets through said tract, South Boston, still it was under this proviso, that the town should not be obliged to do so sooner than they might deem it expedient. It might therefore have been argued, that until the town or [296]*296city had either by vote or act done something to manifest an intent to complete any such street for public use, it would not be in all respects a highway, the obstruction of which was a public nuisance. In reference to such an argument, this direction was correct. The court are therefore of opinion, that these exceptions must be overruled.
In affirming the judgment of the court below, on these grounds, the court are unwilling to be understood as giving their sanction to the opinion of the judge who tried the cause, on another important question respecting the regularity and validity of the votes of the. selectmen of the 27th of February, 1805, pursuant to the act of the legislature therein recited. When this evidence was offered to prove the due laying out of these streets, on objection being made, it was rejected, as not being a legal laying out under the act, be ■ cause no legal notice to those interested, nor any reason for not giving them such notice, appeared on the face of the proceedings.
In order to judge of these proceedings, it is necessary to consider the peculiar circumstances under which they took place, and the nature and character of the legislative authority, under which the acts of the selectmen were done. The question depends rather upon these than upon the general laws providing for the laying out of highways and town ways.
That part of the city now South Boston was formerly part of Dorchester, and was set off from that town, and annexed to Boston, by an act passed on the 6th of March, 1804. Several other acts were passed at the same time, having the same object in view. One was an act to authorize the erection of a toll bridge from Dorchester Neck to the town landing in the southerly part of Boston, — South Boston bridge,—and another to incorporate a company to erect a new, straight and wide street on and along the flats, from the western terminus of South Boston bridge to the central part of the town, to be called Front street.
These acts all had one object in view, which was to add a large tract of comparatively vacant land to the town then [297]*297becoming populous, to be converted into building lots, and to encourage inhabitants to settle and build thereon. To attain that object, it was obviously necessary for the benefit of all, that a certain portion of the soil should be appropriated to common use, for ways, markets, burying-grounds, and other public purposes; and that it was for the interest of all, that these should be laid out in a regular and orderly manner; and that this should be done prospectively, that each proprietor might adjust his improvements and his sales of lots accordingly.
Free access — add to your briefcase to read the full text and ask questions with AI
Shaw, C. J.
The present is an action of trespass quare clausum fregit, alleging an unlawful entry into the close of the plaintiff, and pulling down certain fences.
The defence is, that the plaintiff erected fences on and across two highways in South Boston, called Broadway and * street: that these fences were an obstruction to the high[294]*294way, and nuisances; and that the defendant, as city marshal, removed them, as it was his duty to do. The plaintiff denies that the places where the fences were erected were highways.
The specification of defence states, that the defendant would contend, that the place in question was a public highway, first, by regular laying out; and second, by dedication. Upon these issues the case was tried.
This is certainly a question of much interest and importance to the prosperity of that great section of the city. It is said, that these fences were put up by the plaintiff, with a view to this suit, in order to test the validity of the acts of the selectmen, done nearly half a century ago, in laying out highways over that whole peninsula. If this is so, it confirms the remark just made, as to the importance of the case ;. and it is only to be regretted, that the case comes before this court upon points so meagre and technical, and embracing in so small a degree the merits of the question.
The judge having ruled at the trial that the proceedings of the selectmen of February 27th, 1805, were not a legal and valid laying out, for want of notice appearing upon the face of the record, went on with the trial of the cause, on the question of dedication.
The first exception of the plaintiff was taken to any proof of the acts and declarations of Jonathan Bird, a predecessor under whom the plaintiff claims.
If dedication can be proved at all, it is by matter in pais, and not by deed, and must consist of the acts and accompanying declarations of the owners of the land alleged to be dedicated. If this special dedication could be proved, it must be done by the acts of the owners of the land, in connection with the annexation of Dorchester Neck to Boston, and the proceedings incident thereto; and this was effected by the act of annexation passed March 6th, 1804. Bird continued to be owner of the land, now owned by the plaintiff, till December, 1804. He then sold his estate to William Scollay, but immediately took back the same estate to hold in fee and in mortgage. Afterwards his executor entered for [295]*295condition broken, and he, or those claiming under him, foreclosed the mortgage, so that he or they came in of the old estate of the mortgagee. The fact, therefore, that Bird sold to Scollay, made no difference, and the facts show, that Bird was seized during the whole of the period in question, and was the absolute owner from the time of the annexation to the 6th of December, 1804. We think, therefore, that the proof of his acts was rightly admitted.
The next exception of the plaintiff was to the direction of the judge, that, under the facts proved, if the city had begun to complete the streets, and had bestowed any labor upon any part of them, the soil of which belonged to the plaintiff, it was unlawful for him to erect the fence after-wards, and the defendant was justified in tearing it down; and that the passing of any vote by the city, appropriating money for the streets of South Boston, and the expenditure of any part of the money so appropriated by a city officer, or by a committee intrusted with the expending of the money, on the premises in question, was the act of the city within the meaning of the instruction.
We can perceive no legal objection to this charge, though it does not appear to us to be of the importance attributed to it. It does not appear, that the judge was requested to direct what constituted a dedication, or if he gave any such direction, that any exception was taken to it. By the charge thus stated, therefore, we understand him as intending to say, that if the facts proved manifested an intention of the owners of the soil to dedicate it, these acts of appropriating money and labor manifested an intention on the part of the city to ac cept such dedication, and made the place in question a complete highway, so that the obstruction of it was a public nuisance. Probably, the occasion for this direction was this, that, although by the act of annexation, the selectmen were authorized to lay out streets through said tract, South Boston, still it was under this proviso, that the town should not be obliged to do so sooner than they might deem it expedient. It might therefore have been argued, that until the town or [296]*296city had either by vote or act done something to manifest an intent to complete any such street for public use, it would not be in all respects a highway, the obstruction of which was a public nuisance. In reference to such an argument, this direction was correct. The court are therefore of opinion, that these exceptions must be overruled.
In affirming the judgment of the court below, on these grounds, the court are unwilling to be understood as giving their sanction to the opinion of the judge who tried the cause, on another important question respecting the regularity and validity of the votes of the. selectmen of the 27th of February, 1805, pursuant to the act of the legislature therein recited. When this evidence was offered to prove the due laying out of these streets, on objection being made, it was rejected, as not being a legal laying out under the act, be ■ cause no legal notice to those interested, nor any reason for not giving them such notice, appeared on the face of the proceedings.
In order to judge of these proceedings, it is necessary to consider the peculiar circumstances under which they took place, and the nature and character of the legislative authority, under which the acts of the selectmen were done. The question depends rather upon these than upon the general laws providing for the laying out of highways and town ways.
That part of the city now South Boston was formerly part of Dorchester, and was set off from that town, and annexed to Boston, by an act passed on the 6th of March, 1804. Several other acts were passed at the same time, having the same object in view. One was an act to authorize the erection of a toll bridge from Dorchester Neck to the town landing in the southerly part of Boston, — South Boston bridge,—and another to incorporate a company to erect a new, straight and wide street on and along the flats, from the western terminus of South Boston bridge to the central part of the town, to be called Front street.
These acts all had one object in view, which was to add a large tract of comparatively vacant land to the town then [297]*297becoming populous, to be converted into building lots, and to encourage inhabitants to settle and build thereon. To attain that object, it was obviously necessary for the benefit of all, that a certain portion of the soil should be appropriated to common use, for ways, markets, burying-grounds, and other public purposes; and that it was for the interest of all, that these should be laid out in a regular and orderly manner; and that this should be done prospectively, that each proprietor might adjust his improvements and his sales of lots accordingly.
The act is to be regarded as a grant or private act, made for the benefit of those included in it, and binding upon them if they assent; and we think that such assent may be proved by parol evidence of acts done under it, though it would not be binding without such assent. Ellis v. Marshall, 2 Mass. 269. The principal act is that to set off the north-east part of Dorchester, and annex the same to the town of Boston.
The first section fixes the boundaries. The second section requires the proprietors of said tract to set apart three lots on the same, for public use, for a market-place, a schoolhouse, and a burying-ground, to the satisfaction of the selectmen, &c., such lots to vest in the town of Boston forever, without compensation therefor by the town; with a further provision, that if any proprietor, whose land might be taken, should claim compensation, it should be assessed equally upon all the proprietors. From these provisions, it is manifest, that the legislature, whatever the fact might be, acted upon the belief, that these provisions were made with the assent of all the proprietors. For it is quite certain, that, at that day, — the day of turnpikes, bridges, and canals, — the legislature would not thus authorize the taking of private property for public use without compensation, unless with the consent of all concerned. We do not mean to intimate, that the act itself would be conclusive evidence of the assent of any individual; but we mean to say, that as the legislature professes to act for and to include them if they accept. [298]*298by organizing, meeting and voting to accept, or by claiming privileges and benefits from the act, it becomes binding upon all those who so accept it and claim under it.
We now come to the third section, which vests the authority in the selectmen to lay out streets. It provides, that the selectmen of said town shall be and are authorized to lay out such streets and lanes through the said tract, as in their judgment may be for the common benefit of said proprietors, and of said town of Boston, a reasonable attention being paid to the wishes of the proprietors, &c.; provided only, that no damage or compensation shall be allowed to any proprietor, for such streets and lanes as shall be laid out within twelve months from the passing of the act, and provided also, that the town of Boston shall not be obliged to complete the streets laid out by their selectmen, pursuant to this act, sooner than they may deem it expedient so to do.
It is to be borne in mind, that by a special law then in force, passed June the 22d, 1799, the selectmen of Boston had power to lay out streets, lanes, and alleys; and no vote of the town thereon, confirming the same, was required, as in case of laying out town ways in other towns. The act of the selectmen is itself definitive and final; and therefore it was held, that a writ of certiorari might go to them Parks v. Boston, 8 Pick. 218; Comm'th v. Boston, 16 Pick. 442. The powers of the selectmen, under the act of annexation, were fully considered in the case last cited. In that case, it was not contested, indeed, it was agreed, that the proceedings of the selectmen, in laying out these streets, were regular and valid; but this cannot conclude other parties.
But there are some preliminary questions which are also to be considered. Could Wright, the plaintiff, deny the validity of these proceedings, in a mere collateral suit, and is not the act of the selectmen binding and conclusive, until reversed or set aside ? In general such proceedings are so if voidable only, and not void.
In the case of the Comm'th v. Weiher, 3 Met. 445, in deed, it was held, that one injured by laying out a town waj [299]*299when it is reported by the selectmen and confirmed by vote of the town, may avoid such laying out by plea and proof, because certiorari would not lie to reverse it. Here, that reason does not apply.
Again, is it not questionable whether the plaintiff was injured by it? He purchased long afterwards, by conveyances, in which the rights of way of the town were reserved If this referred to ways actually laid out, ways de facto, then it was a waiver.
But, is it clear, that as a regular laying out, pursuant to the power vested in the selectmen, their act is obnoxious to the exception taken to it ? It may be necessary to compare dates. The act passed March the 6th, 1804. The power was to be executed within one year. We may take notice of another legislative act passed June, 1804, incorporating the South Boston Association, naming a few individuals, and including all other proprietors, who should join, with power to appoint officers, make streets, &c. The plan of Withing-ton, upon which the selectmen acted, is described as having been made October 4th, 1804, which contained the pro gramme, or prospective laying out, and the definitive vote was passed February 27th, 1805.
When, therefore, the selectmen recite that “ they have conferred with the proprietors,” may it not mean all the proprietors, or the proprietors generally ? They could not confer with those who had no notice.
It is said there is a discrepancy between the streets as described in the record, and the delineation on the plan referred to. If, taking the whole together, the streets intended can be identified, and drawn on the ground, misdescription will not avoid or vitiate it, any more than what is called falsa demonstratio in a deed.
But, lastly, supposing there are irregularities in the proceedings, not rendering them void, but only voidable, are they of such a nature, that a court would feel bound to set them aside, upon the question now before them, on a petition for a certiorari ?
[300]*300In general, a court will not interfere on such a petition, where there is no substantial error, (Ex parte Weston, 11 Mass. 417;) or to correct errors in form, in establishing a highway, after the way has been located, accepted and made, (Ex parte Miller, 4 Mass. 56; Rutland v. Worcester, 20 Pick. 71.;) or where parties interested are proved to have had actual notice, although it does not appear on the proceedings, (Hancock v. Boston, 1 Met. 122 ;) or where a great length of time has elapsed, and parties interested have acquiesced, (Hancock v. Boston, 1 Met. 122; Whateley v. Franklin, 1 Met. 336 ;) or where substantial justice has been done, and where, on reversal, the parties could not be placed in statu quo, (Comm’th v. Westborough, 3 Mass. 406 ; Rutland v. Worcester, 20 Pick. 71; Gleason v. Sloper, 24 Pick. 181 ; Whateley v. Franklin, 1 Met. 336.)
These proceedings of the selectmen having been rejected as evidence, upon the question, whether these streets were highways, to which ruling the defendant excepted, and the verdict being in his favor notwithstanding, the question of the correctness of the ruling is not directly made on this argument ; but we have thought it proper to state thus much, in order to preclude the supposition, that this case is an authority against the validity of these proceedings, should the question again arise, although it is not necessary to decide it "n this case.
Exceptions overru*ea.