Nathan Tufts &Amp; Others v. Mayor And Aldermen of Somerville

• Decision Date: 07 March 1877
• Citation: 122 Mass. 273
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Nathan Tufts & others v. Mayor and Aldermen of Somerville

122 Mass. 273

Nathan Tufts & others v. Mayor and Aldermen of Somerville

Supreme Court of Massachusetts

March 7, 1877

Middlesex. Petition for a writ of certiorari. The case was reserved by Morton, J., upon the petition and answer, for the consideration of the full court, and is stated in the opinion.

Writ of certiorari to issue.

C Robinson, Jr., for the petitioners.

S. C Darling, for the respondents.

Morton J. Colt & Ames, JJ., absent.

OPINION

Morton, J.

The Gen Sts. c. 43, § 12, as amended by the St. of 1873, c. 165, provide that when application is made to the county commissioners "by a town, or by five inhabitants of a town, to locate anew a road within such town," "they may, either for the purpose of establishing the boundary lines of such road, or of making alterations in the course or width thereof, locate it anew, after giving like notice, and proceeding in the manner prescribed in laying out highways. The expense shall be assessed upon the abutters or the petitioners, or upon the town or county as the commissioners order."

The St. of 1871, c. 382, § 1, provides that "at any time within two years after any street, highway or other way is laid out, altered, widened, graded or discontinued, when in the opinion of the board of city or town officers authorized to lay out streets or ways respectively therein, any real estate including that, a part of which may have been taken for such purpose, shall receive any benefit and advantage therefrom, beyond the general advantages to all real estate in the city or town where the same is situated, such board may adjudge and determine the value of such benefit and advantage to any such estate, and may assess upon the same a proportional share of the expense of laying out, alteration, widening, grading or discontinuance."

It appears from the return of the respondents that in May, 1872, more than five inhabitants of Somerville made application to the county commissioners to locate anew Milk Street in said Somerville, under the Gen. Sts. c. 43, § 12; that the commissioners proceeded under said petition, and, after due notice to all parties, in September, 1873, located anew said Milk Street, assessed damages to various persons whose lands were taken, and adjudged that the expenses, including land damages, should be paid by the city of Somerville; and that afterwards the board of mayor and aldermen of Somerville, assuming to act under the St. of 1871, c. 382, assessed a part of said expenses upon the petitioners and others whose estates were specially benefited by the relocation. The question in the case is as to the legality of this assessment.

It is not contended that the St. of 1871 repeals § 12 of the Gen. Sts. c. 43. It does not expressly repeal it, and there is nothing in the statute to indicate an intention by the Legislature to take away or diminish the powers of the county commissioners in laying out, altering, discontinuing or locating anew highways. The two statutes are to be construed together as parts of one system. The question then is whether the St. of 1871 was intended to apply to a case of locating anew under the General Statutes. The cases included in its terms are cases of laying out, altering, widening, grading and discontinuing, but it does not in terms include cases of locating anew.

The purpose of locating anew is mainly to establish the boundary lines of...