Metcalf v. City of Boston
| Decision Date | 02 March 1893 |
| Citation | 158 Mass. 284,33 N.E. 586 |
| Parties | METCALF et al. v. MAYOR, ETC., OF THE CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Hutchins & Wheeler, for petitioners.
Andrew J. Bailey, for defendant.
The street commissioners and the city council of the city of Boston laid out a street, 200 feet wide and about 2 miles long, in that part of the city which was formerly Brighton. The center of the street, to the width of 60 feet, has been wrought and fitted for public travel. The petitioners own a large tract of land abutting on the street, which they wish to sell or use for building lots, and they ask for a writ of mandamus to compel the city to grade the street and fit it for travel throughout its entire width.
The fundamental question is whether, when a street or highway is laid out, the authorities are bound to make it safe and convenient for travelers through its whole width, if it is so wrought as to be reasonably fit for the public use for which it was designed. We think it is well settled in this commonwealth that they are not. Howard v. North Bridgewater, 16 Pick. 189; Smith v. Dedham, 8 Cush. 522; Keith v. Easton, 2 Allen, 552; Weare v. Fitchburg, 110 Mass. 334. The requirements of Pub.St. c. 49, § 9, that the county commissioners whenever a highway is laid out or altered "shall, in their return, determine and specify the manner in which such new highway or alteration shall be made," implies that the way is not necessarily to be wrought throughout its entire width. In many places a sufficiently good way can be constructed without occupying nearly the whole of the land taken. Sometimes the existence of ledges, or the necessity of carrying the road along steep hillsides, or of making deep cuts or high embankments, renders it almost impossible to grade the road from side to side of the location. It may be necessary, for the purposes of construction and repair, to include within the location much more land than is needed for the traveled path, and it is for the tribunal laying out the way to determine how much shall be taken for the location and how wide the way shall be wrought for public use.
It is contended that the abutting landowners have a right to require the construction of the road up to the lines of their lots for convenience of access. Undoubtedly they have a right of access to the road from their lots; but roads are constructed for the use of the public, and there is no law requiring cities and towns to construct approaches from the houses or lots of adjacent landowners to the traveled part of the way, or to grade and construct the way up to the lines of the lots to enhance the value of the property. If the construction of the road in a reasonable way for public use will be likely to make access to the road from a neighboring lot difficult, and to require a large expenditure on the part of the owner in the construction of a passageway, that will be taken into account in assessing the damages. The petitioners in the present case own the fee of the street to the center opposite their land, and they have a right to make for themselves driveways to the wrought part of the street in any reasonable way which does not interfere with the use of the street by the public.
The only remaining question is whether the order laying out the street...
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