Albro v. City of Fall River

• Decision Date: 27 March 1900
• Parties: ALBRO v. CITY OF FALL RIVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

175 Mass. 590

56 N.E. 894

ALBRO v. CITY OF FALL RIVER.

Supreme Judicial Court of Massachusetts, Bristol.

March 27, 1900

COUNSEL J. P. Jackson and A. S. Phillips, for petitioner.

L. E Wood, for respondent.

OPINION

BARKER J.

In the year 1897 the street in front of the petitioner's lot was raised between three and four feet, and the petitioner was damaged thereby to the amount of $1,163. These damages she now seeks to recover. Her petition for damages was filed with the mayor and aldermen after the commencement of the work and within one year from its completion. The mayor and aldermen made no adjudication upon it, and she filed the present petition within one year from the expiration of thirty days from the time of filing the petition to the mayor and aldermen, but more than one year after the completion of the work done in 1897. If the work was done under the provisions of Pub. St. c. 52, for the purpose of repairing the way, this petition is seasonably brought, under Pub. St c. 52, §§ 15, 16, and the petitioner is entitled to a verdict for the amount which it is agreed that she was damaged, and interest and costs. If the work was done under the rrovisions of Pub. St. c. 49, authorizing the ordering of specific repairs, the omission from the order of an adjudication of damages to the petitioner was equivalent to an adjudication that she sustained no damage. Monagle v. Commissioners, 8 Cush. 360; Goddard v. Mayor, ect., 9 Gray, 88; Sullivan v. City of Fall River, 144 Mass. 579, 585, 12 N.E. 553; Sisson v. City of New Bedford, 137 Mass. 255. If aggrieved by that adjudication of her damages, her petition for relief must be brought within one year after the order, and she cannot recover, because this petition was not seasonably brought. Pub. St. c. 49, § 79.

The street was laid out as a public way in 1872, by an order which fixed its grade, and fixed it higher than that to which the street was brought up by the work done in 1897. But no attempt was made until 1897 to bring the street to the established grade. On the contrary, the street was opened to travel at the grade existing before it was laid out as a public way, and was maintained at that grade until 1897. During all the period repairs were made upon it at that grade, water pipes and sewers were placed beneath its surface, permanent sidewalks and paved gutters and catch-basins were built, street lights erected, and hydrants, curbings, and cross walks established. In 1897 a petition was presented to the board of aldermen, representing that common convenience and necessity required that the grade of the street be defined for the use of the city, and asking the board to cause the same to be done. Upon this petition the board made an order declaring the grade of the street as accepted in 1872 to be the grade of the street. On the same day with the adoption of the order declaring the grade to be that of the street as accepted in 1872, the board of aldermen adopted another order, authorizing and directing the superintendent of streets to work the street to grade. The defendant contends that the raising of the street was done under this order, and that it was done either as original construction or as a specific repair under the authority of Pub. St. c. 49 while the petitioner contends that the raising of the street was done in repairing the way under Pub. St. c. 52.

The contention is untenable that the work was one of original construction,--in other words, a mere completion of the way at a grade established when it was laid out, so that any damages resulting must be deemed to have been occasioned by the laying out of the way. In Brady v. City of Fall River, 121 Mass. 262, a street having been laid out in 1870 by an order establishing its grade about a foot higher than that of the street as it was used for travel before it was laid, it was held that work done in 1874 in raising the street to the established grade, under an order of the mayor and aldermen that the superintendent of streets should cause the street to be worked to grade, should be considered as work of original construction, and that the damages caused by raising the street to grade were included in the damages for the original location. But in Cambridge v. Commissioners, 125 Mass, 529, it was held that when a street laid out with an order establishing the grade at which it was to be constructed was constructed and opened for travel, but not then brought to the grade established in the order of location, if, after the lapse of 16 years, the street was raised to that grade, the work done could...