Mchugh v. City of Boston

• Decision Date: 19 May 1899
• Citation: Mchugh v. City of Boston, 173 Mass. 408, 53 N. E. 905 (Mass. 1899)
• Parties: MCHUGH v. CITY OF BOSTON.
• Court: Supreme Judicial Court of Massachusetts

173 Mass. 408

53 N.E. 905

MCHUGH v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1899

COUNSEL

Chas.

R. Darling and J.F. O'Connell, for appellant.

Samuel L. Child, for appellee.

OPINION

HAMMOND J.

The plaintiff was hired by a person having a contract with the defendant for the construction of Lonsdale street, a public highway duly laid out in the defendant city, and, not having been paid for his work, brings this action, relying upon St.1892, c. 270. He seasonably filed the required certificate, and the main question is whether a claim for work done in the construction of a highway is within the first section of the statute. The section provides that "a person to whom a debt is due for labor performed in constructing any building, sewer, drain, water works, or other public works owned by a city or town under a contract with any person other than such city or town *** shall have a right of action against such city or town to recover such debt with costs." The plaintiff contends that a highway or street is included in the phrase "other public works," and that it may be said to be "owned" by the city or town.

The first idea which occurs to one in considering this contention is that, if the legislature meant to include public ways, it is strange they did not expressly say so. In a general sense it may be said that there is no more prominent item in the public charges than that concerning the construction and repair of public ways, and no town is free from the burden. It seems highly improbable that a statute which was intended to apply to such a prominent and universal object of expense as the public ways should fail distinctly to name them, especially when it names sewers and drains, which are by no means so general, and are comparatively unimportant. Again, in no proper sense can the public ways be said to be owned by the town. The town house, engine house, sewers, drains, and waterworks may be, and generally are, the private property of the town. They are constructed for the use of the inhabitants, and the ownership is in the town, in its corporate capacity. But there is no such ownership in the highways. The town does not become by virtue of the laying out the owner either of the fee or the easement.

In Inhabitants of Andover v. Sutton, 12 Metc. (Mass.) 182, which was an action upon the case to recover expenses paid by the plaintiffs in repairing a highway which had been rendered defective by the flow of water caused by the dam of the defendants, who were mill owners, one of...