Bigelow v. City Council of City of Worcester
| Decision Date | 09 November 1897 |
| Citation | 48 N.E. 1,169 Mass. 390 |
| Parties | BIGELOW v. CITY COUNCIL OF WORCESTER. WHITCOMB et al. v. MAYOR OF WORCESTER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W.A. Gile, for petitioners.
A.P Rugg, City Sol., for respondents.
These two cases are founded on the alleged illegality of action taken by the city council of the city of Worcester in adopting an order authorizing and directing the construction of a bridge at the causeway crossing Lake Quinsigamond in accordance with plans on file in the office of the city engineer. The first is a petition for a writ of certiorari to quash the proceedings; the second is a bill in equity brought by 10 taxpayers, under Pub.St. c. 27, § 129, to obtain an injunction against the officers of the city to prevent the expenditure of money under the order. The principal difference between the cases is in the remedy sought. According to the record now before us, the proposed work involves, first, a change of grade in an existing highway, and, second, a change in the material of which the way is constructed. There is now a causeway built across the lake by filling along the line of the highway, and constructing an embankment of earth, over which the travel passes. The order directs an excavation of the earth, and the substitution of a bridge for a certain distance along the highway. The width of the location of the highway at this point, as laid out by the county commissioners, does not appear. Their order for construction required that the traveled part should be worked for use by teams to the width of 24 feet, and the agreed statement of facts shows that the width of the traveled way has been in fact about 33 feet. The lake at this point is about 80 feet deep, and the filling for the causeway, sloping upward, is about 230 feet wide at the bottom. Lake Quinsigamond is a great pond, and it is agreed that the proposed location for the bridge and the change of grade for the approaches to it are entirely within the limits of the causeway as constructed, and outside of the limits of riparian ownership by any individual. The fair inference is that they are within the limits of the location of the highway; at least there is nothing to show that they are not. The proposed changes have been approved by the board of land and harbor commissioners, and by the governor and council representing the interests of the public and of commonwealth in the great pond. In Callender v. Marsh, 1 Pick. 418, it was held that upon the location and construction of a highway, and the payment of damages to abutters, the public acquire by purchase a right to do everything with the soil over which the passage goes that may render the way safe and convenient, including the making of changes of grade, however great, without the further payment of damages. Soon after this decision a statute was passed, which now appears in Pub.St. c. 52, § 15, giving to abutters the damages caused by changes of grade or other work done for the purpose of repairing a way. The right to make changes of grade and changes of construction by the public authorities within the limits of existing ways, without notice to abutters or other individuals who may deem themselves interested, is recognized by our statutes and decisions. If such changes are no greater than may be made as a part of ordinary repairs, looking only to such improvements as may be expected as incidental to reconstruction, they are within the authority of the highway surveyor or road commissioners. If they are of great magnitude, they are made under orders for specific repairs, passed by the county commissioners, or by the selectmen or road commissioners of towns, or by the proper authorities in cities. Provisions for laying out, altering, and discontinuing highways and townways are found in ...
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