Com. v. Fitzgerald

• Decision Date: 29 November 1895
• Citation: Com. v. Fitzgerald, 164 Mass. 587, 42 N.E. 119 (Mass. 1895)
• Parties: COMMONWEALTH v. FITZGERALD.
• Court: Supreme Judicial Court of Massachusetts

164 Mass. 587

42 N.E. 119

COMMONWEALTH v. FITZGERALD.

Supreme Judicial Court of Massachusetts, Hampden.

November 29, 1895

COUNSEL

C.L Gardner, Dist. Atty., for the Commonwealth.

Tom Fitzgibbon, for defendant.

MORTON J.

The bridge in question was originally a toll bridge. By St.1872 c. 131, § 1, it was laid out as a public highway, and the care and superintendence of it were given by section 4 to the city council of Springfield and the selectmen of West Springfield. Commissioners were appointed, who awarded the proprietors $30,000 "as damages for the laying out of said bridge, piers, and abutments, and way as a public way," and for the land, toll house, and all the appurtenances. Of this sum, $15,000 was apportioned to the county of Hampden, and was duly paid by it; $10,000 was allotted to the city of Springfield, $4,000 to the town of West Springfield, and $1,000 to the town of Agawam. The commissioners also awarded that the county should pay-one half of the expense of maintenance and repairs (which it has done), and that the city of Springfield should pay one-third and the town of West Springfield one-sixth. The indictment alleged that the bridge was the property of the county of Hampden. The defendant asked the court to rule that there was a variance between the allegation and the proof, and also to instruct the jury that there was no evidence that the county had any general or special property in the bridge. The court refused to rule or instruct as requested, and the case went to the jury, with instructions that, for the purposes of the case, they might consider the bridge as the property of the county.

If under Pub.St. c. 214, § 14, the county had any property, general or special, in the whole or any part of the bridge, then the instruction was correct, and there was no variance. In the case of highways or townways laid out in the ordinary manner, all that is acquired, so far as the soil is concerned, is an easement in the land on which they are located and constructed; and that belongs to the public, and not to the counties or cities or towns which are required to pay the damages caused by laying them out, and the expenses of making and maintaining them. The fee remains in the owner of the soil. Inhabitants of Andover v. Sutton, 12 Metc. (Mass.) 182; Inhabitants of Cheshire v. Adams & C. Reservoir Co., 119 Mass. 356; Inhabitants of Charlotte v. Pembroke Iron Works, 82 Me. 391, 19 A. 902. The ways thus created are for the general benefit, and not for the special use, of any particular county, city, or town, though it may happen that those living in the vicinity will derive more benefit from them than those living elsewhere, and that local needs may have been the immediate cause of the laying out. Public bridges form parts of the highways or townways in which they are constructed, and, except when other provision is made therefor, are to be built and maintained and kept in repair by the county or city or town where they are situated. Pub.St. c. 52, § 1. Originally, it was provided that they should be constructed by the towns in which they were situated. Records of Massachusetts, vol. 3, pp. 144, 145. Then, as the burden thus imposed on the towns was deemed too great, the counties in which they were located were obliged to build them. Id. p. 376. Now, the authority to build them grows, generally speaking, out of and is included in the authority to lay out and make highways and townways, and the obligation to maintain and repair them arises out of a like obligation. 3 Dane, Abr. p. 278. There have been numerous instances, however, of which we recite a few, and of which this case furnishes an example, in which either the commonwealth has borne the whole or a part of the expense of construction, in which latter case the residue and the expense of maintenance and repair have been divided between one or more counties and the benefited cities or towns, or the whole cost of construction and of maintenance and repair has been apportioned between the county and certain cities and towns, or has been placed upon certain towns, or has been provided for in some other especial manner. 1 Acts & Res.Prov.Mass. Bay, pp. 158, 383, 419; 2 Acts & Res.Prov.Mass. Bay, pp. 44, 795; 3 Acts & Res.Prov.Mass. Bay, p. 326; 4 Acts & Res.Prov.Mass. Bay, pp. 740, 1023; 5 Acts & Res.Prov.Mass. Bay, p. 134; St.1860, c. 95; St.1862, c. 177; St.1868, c. 309; St.1869, c. 161; St.1871, c. 177; St.1872, c. 295; St.1873, c. 200; St.1875, c. 175. In all of these cases, unless there is some special provision to the contrary, the easement...