Everett v. City of Fall River

• Decision Date: 28 November 1905
• Citation: 189 Mass. 513,75 N.E. 946
• Parties: EVERETT et al. v. CITY OF FALL RIVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 513

75 N.E. 946

EVERETT et al. v. CITY OF FALL RIVER.

Supreme Judicial Court of Massachusetts, Bristol.

November 28, 1905

COUNSEL

L Elmer Wood and A. S. Phillips, for petitioners.

Hugo A Dubuque, for respondent.

OPINION

SHELDON, J.

This is a petition, filed June 3, 1903, to recover damages caused by the laying out of Barnes street in Fall River, and the establishment of the grade thereof. The layout was made after proper order and notice, by a report dated October 27, 1902, which was signed individually by the mayor and aldermen, was received, read and accepted by the board of aldermen on that day, and sent to the common council, in which, on the 3d day of November, after all proper preliminaries had been complied with, it was voted that this report of the mayor and aldermen be accepted and allowed, and on the same day, it was again transmitted to the board of aldermen, and there accepted and allowed in concurrence. It did not appear ever to have been either approved or vetoed by the mayor or to have been presented to him. At the close of the petitioners' evidence, a verdict was ordered for the respondent; and the case comes before us on a report made by the judge who presided at the trial.

The respondent's first contention is that this layout was invalid, because not signed by the mayor. There is no doubt that ordinarily every order of the city council must be presented to the mayor, and and become valid only by his approval or failure to act upon the question of approval, or by being passed over his veto. Rev. Laws, c. 26, § 9; Pub. St. 1882, c. 28, § 6; Quinn v. Cambridge, 187 Mass. 507, 73 N.E. 661; Murphy v. Webster, 131 Mass. 482. But the city charter of Fall River then in force gave exclusive power to lay out streets to 'the mayor and aldermen with the concurrent vote of the common council.' St. 1885, p. 710, c. 269, § 19. This layout was made by the mayor and aldermen acting together, and was afterwards concurred in by vote of the common council. We should hesitate to say that the layout was invalid because not thereafter approved by the mayor. But it is unnecessary to pass upon this question because we are of the opinion that the respondent was entitled to a verdict for another reason. Indeed, the case of Baker v. Fall River, 187 Mass. 53, 72 N.E. 336, would be decisive against the contention of the defendant, except that it does not appear that the question whether the layout must finally be approved by the mayor was raised in that case. Certainly the terms of the statute here in question are very different from those considered in Quinn v. Cambridge and Murphy v. Webster, ubi supra.

The next question raised is whether this petition was prematurely brought. It is provided by statute that such a petition as this may be made at any time before the expiration of one year, in the case of the taking of land from the day when the highway is entered upon and possession taken for the purpose of constructings the same, in the case of specific repairs from the day when the work is actually commenced on the way and in all other cases from the date of the order providing for the same. Rev. Laws, c. 48, §§ 28, 80. This petition was brought within one year from the date of the order for the layout, and no question is made that it was properly brought if none of the petitioner's land was taken. The petition, as at first filed, averred that the way was laid out over the petitioners' land. The amended petition, on which the trial was had, averred only that the way had been laid out adjoining their land. The petitioner's deed and prior deeds of the property were put in evidence, and they all described the land as 'a certain lot of land and the buildings thereon, situate on the northerly side of contemplated Barnes street, in said Fall River, and bounded and described as follows, viz,: Beginning at the southwesterly corner of said lot, at a point in said northerly line of Barnes street four hundred and eight and ninetenths (408.9) feet easterly thereon from County street, and thence running northerly, at right angles with said street, one hundred (100) feet, for a corner; thence easterly, by land now or formerly of Leonard N. Slade, fifty (50) feet, for a corner; thence southerly, one hundred (100) feet, to said Barnes street; and thence westerly, by said street, fifty (50) feet, to the point of beginning--containing eighteen and 365/1000 (18.365) square rods of land.' As there was nothing to control the effect of this deed, it follows that the petitioners' land extended to the middle of the street. McKenzie v. Gleason, 184 Mass. 452, 69 N.E. 1076, 100 Am. St. Rep. 566; Lemay v. Furtado, 182 Mass. 280, 65 N.E. 395; Dean v. Lowell, 135 Mass. 55, 60; O'Connell v. Bryant, 121 Mass. 557; Peck v. Denniston, 121 Mass. 17; Boston v. Richardson, 13 Allen, 146. This was a case, therefore, in which land of the petitioners was taken by the layout, and the petition could be brought at any time before the expiration of one year from the day when the highway was entered upon and possession taken for the purpose of construction. Without recapitulating the evidence, it is enough to say that there was absolutely nothing to show such entry and taking of possession of any part of this street, except what related to work done in the fall, about October of 190...