Attorney Gen. v. Collins

• Decision Date: 23 June 1904
• Citation: 71 N.E. 574,186 Mass. 209
• Parties: ATTORNEY GENERAL v. COLLINS. HUNT v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 209

71 N.E. 574

ATTORNEY GENERAL

v.COLLINS.

HUNT

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1904.

Case Reserved from Supreme Judicial Court, Suffolk County; Wm. Caleb Loring, Judge.

Petitions by the Attorney General, on the relation of Henry W. Hunt, and by said Hunt in his individual capacity, for writ of mandamus against Patrick A. Collins and others, to compel the improvement of a certain street in the city of Boston. On reservation by a justice of the Supreme Court for the full court. Petitions dismissed.

On September 24, 1844, the road, causeway, or mill dam and bridge referred to in the opinion were laid out by the county commissioners of Norfolk county under the name of Commercial (now Freeport) street, 40 feet in width throughout, except as to a bridge, which was to be 30 feet wide, with a draw 20 feet wide in the clear for vessels. The order of the county commissioners provided: ‘The whole of said road, bridge, and draw to be repaired within two months so as to be convenient and perfectly safe for all loads, teams, and travelers. The whole bridge, abutments, and draw to have strong and sufficient railings on both sides for the security of travelers. The draw to be raised and lowered at all times for the passage of vessels on reasonable request by an agent to be appointed by the selectmen of Dorchester, and to be always kept in good repair.’ The boundaries and lines were to be in accordance with a plan thereof by E. F. Woodward, surveyor, dated August 28, 1844, on file therewith, to which reference was made. The lands covered by the road and bridge were purchased and the road and bridge were built originally by Newell, Niles & Co. by authority of the general court on or about 1809, and the same was opened and used by travelers for many years, and until said bridge and draw became unsafe and impassable.

Henry W. Putnam, for petitioners.

Thos. M. Babson, for defendants.

HAMMOND, J.

These are petitions, one by the Attorney General of the commonwealth at the relation of a private citizen, and the other by an abutting landowner, for a writ of mandamus to compel the respondents to construct a certain ‘portion of Freeport street to the full width of forty feet, either with a stone retaining wall or wooden bulkhead with solid filling, or with piles and planking or other suitable construction, and to make and maintain the same open, safe, and convenient for public travel to said entire width, with strong and sufficient railing for the security of travelers on the easterly or outward side of the same.’ It appears that by St. 1807, p. 179, c. 13, and St. 1808, p. 410, c. 17, a corporation finally called the Dorchester Mill Corporation was authorized to build certain roads, including a milldam or causeway over Mill creek, so-called, in what was then the town of Dorchester, since become a part of Boston; the causeway to be 40 feet in width, and to contain a bridge or draw through which at proper times vessels might pass; and that as early as 1810 the causeway and bridge were built, the greater part being over flats, which at high tide were covered with water several feet in depth. The causeway was built with solid filling, the retaining wall being of stone. It was 40 feet wide, except that on the easterly side there was a jog or recess in the wall about 119 feet long and 5 feet wide at the northerly end and 7 feet wide at the southerly end, so...