Gilkey v. Town of Watertown
| Decision Date | 02 March 1886 |
| Citation | 5 N.E. 152,141 Mass. 317 |
| Parties | GILKEY v. TOWN OF WATERTOWN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W.B. Durant, for plaintiff.
J.J Sullivan and J.B. Goodrich, for defendant.
It is doubtful whether a bill of this character can be maintained against a town; but the parties have agreed that the bill may be regarded and treated as amended so as to be a bill to restrain the officers and agents of the defendant town from entering upon the plaintiff's land and appropriating it for a highway. Thus treating it, we preferred to consider the case upon its merits.
In June, 1873, the county commissioners, upon the petition of the town of Watertown, relocated Arsenal street, in the said town, the location including in the highway the land of the plaintiff which is in dispute. If this location was valid the plaintiff cannot maintain his suit. He objects that the location is indefinite and uncertain. Looking at the record of the commissioners, it is clear that they intended to locate and describe the highway according to a plan made by Joseph Crafts, which is referred to and made part of the description. If the plan is followed, there is no difficulty in laying out the way on the land, and the location is definite and certain. But there are bound to be some discrepancies between the description and the plan, so that the two are not reconcilable. For instance, by the description, the southerly line starts at a fixed point, H in said plan, and runs 293.43 feet, to a point marked B, on said plan; thence it turns, and runs eastward, by forming an angle of 170 deg. and 22 min. with the last described line, 2,049 feet, to a point marked "C" on said plan; thence, by other lines, to the points marked "D" and "E" on the plan. If this angle is to be regarded as controlling, the line, from point, B, will not strike the point, C; but will run many feet to the south of it, and the continued lines could not strike the points, D and E. Indeed, the angle as defined is inconsistent with all the other points of the location, and is also inconsistent with the purpose which the commissioners had in view. They were not laying out a new highway, but were defining the boundaries of and locating anew an old way. If the angle is followed, the highway will in a few rods depart entirely from the old way, and create a new road. Looking at the whole record, it is clear that the description of the angle was an accidental error. There are one or two other discrepancies of a similar character. But it has been held that if, taking the whole location together with the description and the plan, the way intended can be identified and constructed on the ground with reasonable certainty, misdescriptions will not avoid or vitiate the laying out of the way, any more than what is called falsa descriptionae in a deed will avoid the deed. Wright v. Tukey, 3 Cush. 299; Henshaw v. Hunting, 1 Gray, 203.
In this case it is clear that the county commissioners intended, in describing the lines of the way, to follow the plan. They made errors in the description; but, taking the whole record, there is no real difficulty in ascertaining the way they intended to lay out. The record itself furnishes the means of correcting the errors, and we are of opinion that the discrepancies relied on by the plaintiff do not render the location invalid.
The plaintiff contends that the location is invalid because the records of the commissioners do not show that there was sufficient notice of the meeting held for adjudicating upon the question of the common convenience and merits of the way and of the meeting for locating it. Mere objections go to the formality and regularity of the proceedings and record, and do not affect the jurisdiction of the commissioners. It has been repeatedly held that their...
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