McCarthy v. City of Boston

• Decision Date: 20 June 1905
• Citation: 188 Mass. 338,74 N.E. 659
• Parties: McCARTHY v. MAYOR OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 338

74 N.E. 659

McCARTHY v. MAYOR OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 20, 1905

COUNSEL

Whipple, Sears & Ogden and Alexander Lincoln, for petitioner.

Samuel H. Hudson, Asst. Corp. Counsel, for respondents.

OPINION

MORTON, J.

This is a petition for a writ of mandamus by the owner of land on Pontiac street, in Boston, to compel the mayor, the board of street commissioners, and the superintendent of streets to proceed forthwith to construct Pontiac street, or in the alternative to compel its discontinuance. The case was heard by a single justice, who found the facts, and it comes here on a report and reservation by him 'as to what order shall be made in the premises.'

From the facts found it appears that Pontiac street was laid out in November, 1899, in part, at least, over a private way or road called 'McCarthy Place,' built by the petitioner at his own expense to open up his rear land. The work of construction was begun and then suspended, and nothing has been done since November, 1900. There is no intention of resuming the work at present, but the construction of the street has not been abandoned, and it is the intention to construct it at some future time. It further appears, and is so found, 'that many streets laid out before as well as since Pontiac street have not been constructed; that to construct them all would cost at least $700,000 more than the amount appropriated for street construction, and would require borrowing money to an amount exceeding the debt limit; that in this state of things there has been no attempt to construct all the streets that have been laid out; that some streets laid out since this one have been constructed and that of the appropriation there still remains more than enough to construct this street, unless it be exhausted by the payment of land damages already awarded for other streets and for money required fully to perform other contracts for street construction in existence and partially carried out;' and as to that the presiding justice found 'that it would be exhausted by the payment of the sums thus required fully to perform contracts and for land damages (if all are payable) but it would not be so far exhausted as not to leave enough for the construction of this street by the requirements of contracts simply, and it did not appear what portion of the land damages were yet payable.' It is further found that it is the intention to construct other streets, so that no part of the appropriation will be available for or used for this street. There is nothing to show that the use of the petitioner's land or of McCarthy Place has been or is substantially obstructed by the work done or the condition in which the street has been left. The damages caused to the petitioner by the laying out of the street have been assessed under proceedings instituted by him in November, 1900. The expense of constructing the street will be large, and the law under which the street was laid out has since been declared unconstitutional so far as relates to betterment assessments, so that the city has not had the benefit of the funds which it presumably thus expected to receive.

The respondents concede that when a way is laid out the public authorities required by law to build it are bound to construct it within a reasonable time, and they do not contend that mandamus will not lie at the instance of an abutter, in a proper case, to compel the performance of this duty. It seems to have been assumed without question that it would in Como v. Worcester, 177 Mass. 543, 59 N.E 444, Metcalf v. Boston, 158 Mass. 284, 33 N.E. 586, and Cambridge v. County Com'rs, 125 Mass. 531; and in Richards v. County Com'rs, 120 Mass. 401, the writ was ordered to issue on the petition of eight inhabitants of the town of Attleborough that the county commissioners be required to construct a street which had been located anew, but which the town had refused to complete under the commissioners' order. It does not appear from the published report of the case whether the petitioners were abutters or not, though it may, perhaps, be inferred from the statement in the opinion that the expense could be assessed upon the petitioners or upon the town or county that they were. Although originally a prerogative writ, a petition for a writ of mandamus may now...