Brady v. Fall River

• Decision Date: 20 November 1876
• Citation: 121 Mass. 262
• Parties: John Brady v. City of Fall River
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 262

John Brady v. City of Fall River

Supreme Court of Massachusetts

November 20, 1876

Bristol. Petition to the Superior Court, filed May 15, 1875 for a jury to assess the damages occasioned to the petitioner's estate by changing the grade of Brownell Street in Fall River. Hearing before Brigham, C. J., without a jury, who allowed a bill of exceptions, in substance as follows:

Brownell Street had long been used and travelled upon by the public before 1870. In that year the street was laid out and accepted by the city, the following report of the mayor and aldermen having been accepted by the common council and the board of aldermen: "This board having been petitioned by E. P. Emery and others, on the 21st day of February, 1870, to lay out and accept and make a public street of Brownell Street, from North Main to Davol Street, the same was considered, and it was voted that the mayor appoint a time to meet abutters on the said street, and the 9th day of July having been appointed, and the abutters having been notified this board met at the time and place named and decided that public necessity and common convenience required that the said street should be laid out as petitioned for. The boundaries of said street are as follows: Commencing at a bound stone on the south line of Brownell Street and east line of Davol Street, and running easterly over bound stones at the southeast corners of said Brownell Street and two proposed streets across the Old Colony and Newport Railroad to a bound stone on the southwest corner of Brownell and Main Street for the southerly line of Brownell Street, and the northerly line is (50) fifty feet distant and parallel with the south line. For a further description of said street reference may be had to a plan on file in the city clerk's office. In the above laying out no damage was claimed and no damage awards were made."

A plan of the street was filed in the city clerk's office at the time of the report, and remained there down to the time of this hearing. [A copy of the plan was annexed to the exceptions, showing upon a horizontal scale the boundaries of the street, and upon a vertical scale two grade lines, the upper one in red ink and the lower one in black ink, with figures denoting the heights of the two lines, every fifty feet.]

Nothing was done upon the street, in the way of raising it, until July, 1874, when the following order of the mayor and aldermen was passed: "Ordered that the superintendent of streets cause Brownell Street to be worked to grade from North Main Street to Davol Street." Under this order the street was raised, opposite the petitioner's land, about a foot higher than its former level, and the petitioner's land was thereby damaged.

The respondent, against the objection of the petitioner introduced evidence showing that, in so raising the street, the superintendent used and worked by the plan referred to. This was not contradicted; and it was not contended...