Fitchburg R. Co. v. Fitchburg

• Decision Date: 23 October 1876
• Citation: 121 Mass. 132
• Parties: Fitchburg Railroad Company v. City of Fitchburg
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 132

Fitchburg Railroad Company v. City of Fitchburg

Supreme Court of Massachusetts

October 23, 1876

Worcester. Tort for breaking and entering the plaintiff's close. Writ dated December 31, 1874. Trial in the Superior Court before Putnam, J., without a jury, who allowed a bill of exceptions in substance as follows:

The trespasses complained of were admitted by the defendant to have been done by its agent; and the title of the plaintiff to the land in question was also admitted.

On August 26, 1868, the following petition, signed by David Boutelle and nine others, was presented to the selectmen of Fitchburg: "To the honorable board of selectmen of Fitchburg. We, the subscribers, legal voters of Fitchburg would respectfully request that you would lay out and report to the town a street over the passway leading from Summer Street, opposite D. Boutelle's house, to the depots. In doing which the convenience of the public would be highly promoted."

On the same day the selectmen passed the following order: "On the petition aforesaid, ordered, that all persons interested therein be notified that the selectmen will meet at the Fitchburg Railroad Passenger Station in said Fitchburg, on Saturday the nineteenth day of September next, at one o'clock, P. M. And it is further ordered, that David Boutelle, one of the petitioners aforesaid, serve each person interested in real estate, over which said road is petitioned to pass, with notice of said meeting and order, seven days at least, before the said nineteenth of September, at which time and place the said selectmen will proceed to view the route set forth in said petition, to hear all persons interested therein, who may then and there desire to be heard thereon; and, if they shall adjudge the prayer of said petition ought to be granted, they will then proceed to lay out and locate a road over said route, agreeable to said petition. And the said David Boutelle is ordered to make return of said petition and order, with his doings thereon to one of the said selectmen, on or before the said day."

After the hearing mentioned in the order, the selectmen proceeded to lay out a town way, to be called Depot Court, and described and located it in the report of their doings to the town, on October 26, 1868. One C. L. Heywood, superintendent of the Fitchburg Railroad Company, acknowledged notice upon the back of said petition, on September 2, 1868, but there was no other evidence of any authority on his part so to do except his thus signing his name. There was no other evidence of notice...