Dana v. City of Boston

• Decision Date: 06 April 1898
• Citation: 170 Mass. 593,49 N.E. 1013
• Parties: DANA et al. v. CITY OF BOSTON (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 593

49 N.E. 1013

DANA et al. v. CITY OF BOSTON (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

April 6, 1898

COUNSEL

N.U. Walker, for plaintiffs.

T.M Babson, for defendant.

OPINION

BARKER J.

These cases grow out of acts done by the city of Boston in the year 1884 or 1885 upon a highway under orders adopted in 1884 by the board of aldermen, and approved by the mayor. The first action is a petition by the owners of land situated near, but not adjoining, the highway, for damages done to their land by changes of grade and structural formation under the orders referred to; and the petition was filed in the superior court on June 9, 1885. The other action is in tort, by the same persons, for damages caused by the same acts of the city; and since the entry of the exceptions in this court it has been abandoned by the plaintiffs, so that we do not discuss it. The defendant contends that the petition is under the provisions of Pub.St. c. 52, §§ 15, 16, governing claims for damages for acts done in repairing a way, and that it cannot be maintained, because the petitioner's land does not adjoin the way. At the trial in the superior court a verdict was ordered for the defendant upon the petitioners' offer of proof, and we must take as true the statements of the offer. These statements do not present a case under the provisions of Pub.St. c. 52, §§ 15, 16, but do present one under the provisions of Pub.St. c. 49, §§ 68, 69. The first remedy is given where the raising, lowering, or other act done is for the purpose of making such repairs as can be made without other authority by highway surveyors, or other officials charged with the duty of keeping highways reasonably safe and convenient for travelers, as required by Pub.St. c. 52, § 1. The second is the remedy where the raising, lowering, or other change in the structural conformation of the way is not made merely for the purpose of keeping the way reasonably safe and convenient for travelers but with a view of changing its nature or mode of use; the act done being beyond the ordinary discretionary power of highway surveyors and similar officials, and effected under the authority of, and upon a plan fixed by, those having power to lay or alter ways, and order specific repairs. See Bemis v. City of Springfield, 122 Mass. 110, 116; Sisson v. City of New Bedford, 137 Mass. 255; Sullivan v Fall River, 144 Mass. 579, 12 N.E. 553; Nealley v. Bradford, 145 Mass. 561, 14 N.E. 652; Kennison v. Beverly, 146 Mass. 467, 16 N.E. 278; Allen v. Gardner, 147 Mass. 452, 18 N.E. 222; Keith v. Brockton, 147 Mass. 619, 18 N.E. 585; White v. Inhabitants of Foxborough, 151 Mass. 28, 42, 23 N.E. 652; Proctor v. Stone, 158 Mass. 564, 567, 33 N.E. 704; Garrity v. City of Boston, 161 Mass. 530, 37 N.E. 672; Gray v. Inhabitants of Everett, 163 Mass. 77, 39 N.E. 774; Bigelow v. Mayor, etc., of City of Worcester (Mass.) 48 N.E. 1. In the present instance the highway was raised 18 feet, and was carried over a railroad which it formerly crossed at grade. A bridge over the railroad, and permanent high embankments approaching the bridge, were constructed within the location of the highway. These changes were not such as could be made by officials charged merely with the duty of keeping the way reasonably safe and convenient. They were...