Inhabitants of Town of Lexington v. Suburban Land Co.

• Decision Date: 27 February 1920
• Citation: 126 N.E. 360,235 Mass. 108
• Parties: INHABITANTS OF TOWN OF LEXINGTON v. SUBURBAN LAND CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 108

126 N.E. 360

INHABITANTS OF TOWN OF LEXINGTON

v.SUBURBAN LAND CO. (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 27, 1920.

Case Reserved and Report from Superior Court, Middlesex County; Frederick Lawton, Judge.

Suits by the Inhabitants of the Town of Lexington against the Suburban Land Company. On reservation and report, on bills and demurrers, to the Supreme Judicial Court. Decrees ordered dismissing the bills:

Robert L. Ryder and Nathan B. Bidwell, both of Boston, for plaintiff.

W. Hubert Wood, of Boston, for defendant.

RUGG, C. J.

These are suits in equity, brought by the board of survey of the town of Lexington. The bill in each suit alleges that St. 1907, c. 191, has been accepted by Lexington. The first section of that act provides that the selectmen of any town which accepts its provisions shall constitute a board of survey for that town. Section 2 of that act is in substance as follows:

‘Any person or corporation desiring to lay out, locate or construct any street or way in any town which accepts the provisions of this act, * * * shall, before the beginning of such construction, submit to said board of survey suitable plans of such street or way, to be prepared in accordance with such rules and regulations as the board may prescribe.’

There are requirements for public hearings on such plans after notice, after which ‘the board may determine where such street or way shall be located, and the width and grades thereof, and shall so designate on said plans. The plans shall then be approved and signed by the board and filed’ with the town clerk. Authority is conferred upon the board by section 3 to cause to be made plans of location, direction, grade and width of streets and ways, whether already laid out or not, as in its judgment are required, in accordance with general rules there set forth. It is enacted in section 4 that no way shall thereafter be laid out, located anew, altered, or widened, except in accordance with the act, and if

‘any person or corporation shall hereafter open for public travel any private way the location, direction, width and grades of which have not previously been approved in writing by the board of survey in the manner provided for in this act, then neither the town nor any other public authority shall place any public sewer, drain, water pipe or lamp in, or do any public work of any kind on, such private way so opened to public travel contrary to the provisions of this act: Provided, however, that these provisions shall not prevent the laying of a trunk sewer, water or gas main, if it be required by engineering necessities.’

The bill in the first suit alleges in substance that the defendant is a corporation organized for the purchase of vacant land and laying it out by streets and ways and the selling of lots, and in general for promoting building and settlement of people thereon, and to that end has purchased a large tract in Lexington, and that in order to advise prospective purchasers of lots and builders of homes of the requirements of the law contained in sections 2, 3 and 4 of the act, the board of survey have erected on or near the premises of the defendant and in the highway adjacent thereto signs containing ‘A Warning to Purchasers of Land in Lexington,’ setting out brief statements of these requirements with reference to statutes; that the defendant is about to tear down and remove one of these signs and has already torn down and removed others of them, and intends to sell lots without complying with the requirements of said act and the rules and regulations made pursuant thereto, and without informing purchasers of the existence thereof. The prayers are for injunction to restrain the defendant from tearing down the sign, to order return of signs already removed, for authority to maintain the signs and for general relief.

[1] It is plain that the board of survey have no right to erect and maintain upon land of the defendant signs like that here in question. Such erection and maintenance would be a plain invasion of the rights of private property without authority of law. Diamond v. North Attleborough, 219 Mass. 587, 591, 107 N. E. 445.

The only right acquired by the public by the laying out of a highway by exercise of the power of eminent domain is the easement of travel. While this includes a large variety of uses, these all relate to travel and transportation and the transmission of intelligence and other commodities. Cheney v. Barker, 198 Mass. 356, 84 N. E. 492,16 L. R. A. (N. S.) 436, and cases there collected. The owner of the fee still may use it in any way not inconsistent with the paramount right of the public to use it for travel. Como v. Worcester, 177 Mass. 543, 548, 59 N. E. 444. The right of the public to establish drinking fountains, erect guideboards, and plant shade trees all are carefully authorized and regulated by statute. Commonwealth v. Morrison, 197 Mass. 199, 205, 83 N. E. 415,14 L. R. A. (N. S.) 194, 125 Am. St. Rep. 338. The erection of poles and other structures within the highway for telephone, telegraph, street railway, and electric light and power poles and wires all also are governed by statute, variations from the provisions of which are unauthorized. Reed v. Edison Electric Illuminating Co., 225 Mass. 163, 166, 114 N. E. 289. See Lentell v. Boston & Worcester Street Railway, 202 Mass. 115, 88 N. E. 765. Even the right of the abutting owner to erect obstructions within the highway often is made subject to public regulation. Union Institution for Savings v. Boston, 224 Mass. 286, 112 N. E. 637.

The plaintiffs fail to show any right in themselves to erect and maintain signs within highways. Their powers and duties under St. 1907, c. 191, afford no justification for erecting signs. Such signs have no relation to public travel. As...