Preston v. City of Newton

• Decision Date: 29 January 1913
• Citation: 213 Mass. 483,100 N.E. 641
• Parties: PRESTON v. CITY OF NEWTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 483

100 N.E. 641

PRESTON v. CITY OF NEWTON.

Supreme Judicial Court of Massachusetts, Middlesex.

January 29, 1913

Jan 29, 1913.

COUNSEL

H. J Jaquith, of Boston, for appellant.

Winfield S. Slocum and Pitt F. Drew, both of Boston, for respondent.

OPINION

DE COURCY, J.

This is a bill in equity relative to a taking of land by the city of Newton for the widening of Washington street. The order of the board of aldermen purported to take a strip of land about 411 feet in length, 9 feet in width at the northerly end and tapering to a point at the southerly end, and also an easement of slope in the adjoining land. As these two elements are separable and are governed by different legal principles, we shall first consider the strip of land taken and laid out for a street.

It is apparent from the description and plan duly filed in the registry of deeds after the passage of the order to take the land, that the taking was in accordance with the provisions of the statutes and of the charter of the city of Newton, and was valid. R. L. c. 48, St. 1897, c. 283, § 14, cl. 4. Indeed the plaintiff, by prosecuting his petition for the assessment of damages for the taking, necessarily has admitted that the proceedings by the city were legal and regular, and that his land has been appropriated by the municipality (Pinkham v. Chelmsford, 109 Mass. 225; Murray v. Norfolk, 149 Mass. 328, 21 N.E. 757); and it is well settled that where the Legislature authorizes the taking of land for a public use, and the taking is in accordance with the statute, and a plain and adequate remedy is provided for compensation, the remedy provided by the statute is exclusive (Lancy v. Boston, 185 Mass. 219, 70 N.E. 88).

The plaintiff shows no legal cause of complaint in the fact that the city has not wrought the street. Roads are constructed for the safety and convenience of the public, and the city is not obliged to grade them up to the line of adjacent lots, or to construct approaches therefrom. If, in order to provide access from his property to the road, the landowner is required to undergo expense, that will be taken into account in assessing the damages. Metcalf v. Boston, 158 Mass. 284, 33 N.E. 586; Como v. Worcester, 177 Mass. 543, 59 N.E. 444; Hunt v. Boston, 186 Mass. 209, 71 N.E. 574. Apparently the allegation in the bill that the land taken and not worked has been abandoned is not now relied upon. As to this it is enough to say that a way once duly laid out continues to be such until discontinued according to law. Loring v. Boston, 12 Gray. 209; Bliss v. Attleboro, 200 Mass. 227, 86 N.E. 299.

The order of the board of aldermen, after the description of the parcel of land taken, contains the following: 'An easement is also taken as shown on said plan in the land adjoining said street as widened, consisting of a right to have the land of the location of said way protected by having the surface of such adjoining land slope from the boundary of the location of said Washington street as widened.' And the plan referred to indicates that the proposed 'slope line of easement' is entirely outside of the new line of the street.

But in laying out the way the city had no right to take an easement in this land beyond the limits of the location. As stated by Knowlton, J., in Doon v. Natick, 171 Mass. 228, 50 N.E. 616: 'The statutes which authorize the laying out of highways and town ways do not recognize the necessity or desirability of taking different kinds of easements for the construction of ordinary ways, but they provide for the location of ways over lands of private owners. A location under these statutes...