Spaulding v. Nourse
| Decision Date | 23 February 1887 |
| Citation | 10 N.E. 179,143 Mass. 490 |
| Parties | SPAULDING v. NOURSE and another. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W.T. Forbes, for defendant.
The change voted by the town was an alteration, and not a discontinuance, hence chapter 214 of the acts of 1875. The selectmen alone could determine the expediency of altering a town way. Rev.St. c. 24, § 66. There was no notice in the warrant of any proposed alteration in the way; and the action of those present was not binding on absent voters or the town. The first legal municipal act of the town was to oppose the passage of an act attempting to give validity to the illegal vote of those present at the meeting in 1856. By chapter 224 of the acts of 1875 the legislature attempted to confirm the illegal vote of the town in 1856, and in the same act to lay out a way one rod and a half wide. The town might have discontinued the way altogether, for the whole or any part of its length, and those damaged could have enforced their claims for compensation at any time within one year. Rev.St. c. 24, §§ 68, 70, 76. Persons damaged by the proposed change could not have recovered damages within one year from the vote of 1856, as that vote was illegal and of no effect. They could not recover damages after the confirming act of 1875, for the time limited under the general law had expired. No provision existed for the recovery of damages arising from a legislative alteration of a way, and none was provided in that act. In 1856 the road in question was laid out two rods in width as a town way. Persons sustaining damages were entitled to compensation under Rev.St. c. 24, § 68. In estimating the damage sustained, the direct and special benefits of the particular kind of way laid out must be deducted. Donovan v. Springfield, 125 Mass. 371; Com. v. Sessions of Norfolk, 5 Mass. 437. Since full compensation must be made when land is taken under the exercise of the right of eminent domain, and as part of that compensation under the law of this commonwealth is the above benefits, if any of those benefits are subsequently taken away, compensation must be made. Such compensation has always been provided for by statute in cases of discontinuance or alteration of town ways. Having a wide street in front of adjoining lots must have been considered a benefit, and damages for laying out the way awarded accordingly. The action of the town in 1856 being illegal and the act of 1875 being unconstitutional, it was the duty of the defendant, as highway surveyor, to remove the plaintiff's fence from the town way. Having conferred upon another tribunal the power to alter town ways, until the general law by which they did this should be altered or repealed, their power in such a case as the present, was exhausted. White v. White, 105 Mass. 325. It is not a case of confirming an informal vote, but of depriving abutters on a highway of their property without any compensation.
J.E Beeman, for plaintiff.
The vote of the town discontinuing the way was in accordance with the statute. Pub.St. c. 49, § 66; Avery v. Stewart, 1 Cush. 496. A town may discontinue a part of a road or street, as well as the whole. Smith v. Boston, 7 Cush. 254. This may be done in regard to a section upon the side of the way, as well as of a cross-section of the way. The act of the legislature confirming this vote cannot be called in question; for, if there was any informality in the vote of the town, it was such as might have been dispensed with by prior statute, and therefore might by subsequent act. Cooley, Const.Lim. 458, and cases cited. The act confirming the vote of the town was such an act as has always been held to be within the power of the legislature. Freeland v. Hastings, 10 Allen, 570; Supervisors Portage Co. v. Wisconsin Cent. R. Co., 121 Mass. 460; Thomson v. Lee Co., 3 Wall. 327; Beloit v Morgan, 7 Wall. 619; Allen v. Archer, 49 Me. 346. The legislature has power to discontinue a way. Tinker v. Russell, 14 Pick. 279. The evidence offered was incompetent. The statements or verbal agreements made by a former owner could not affect the rights of the plaintiff. Upon agreed facts the plaintiff is entitled to judgment in her favor.
OPINION
By Rev.St. c. 24, § 70, a town, at a meeting regularly called for that purpose, may discontinue any town way or private way. Under this statute, the town of Westborough, in November, 1856, voted to discontinue a strip of land, one-half a rod in width, upon the side of a town way, "on Davis and Bullard's land, and thence to land of R.G. Holmes to a point." The plaintiff is now the owner of land then of Davis and Bullard. The legality of the vote of the town was disputed, upon the ground that the town could have discontinued the way altogether for the whole or any part of its length; but, under a vote to discontinue, could not narrow the road. It was contended that the act voted to be done was an alteration, and not a discontinuance; that the selectmen in the first instance could alone determine the expediency of altering a town way; and that the alteration of a road is technical, and means the substitution of one line of way for another, and the discontinuance of that for which it is substituted. Sprague v. Waite, 17 Pick. 315; Goodwin v. Marblehead, 1 Allen, 37.
The act of the legislature confirming the vote of Westborough of November 4, 1856, was passed in 1875, c. 224. By this act the vote of the town "is hereby made valid and confirmed to the same extent as if said town had authority in that manner to alter the width of the way; and said way is hereby laid out one rod and one-half wide on that part, in accordance with the said vote, and the plan on file in the town clerk's office in said town." The defendant denies the authority of the legislature to pass this act, and denies that it has binding force. Having conferred upon another tribunal the power to alter town ways, until the general laws by which the legislature did this should be altered or repealed, its power the defendant contends, in such a case as the present, was exhausted; citing White v. White, 105 Mass. 325. This has no application to the power of the legislature in the case under consideration. It was held there that the legislature had exercised its power under the constitution to take away the jurisdiction of the governor and council, and confer it upon another tribunal, and, until the general law by which this was done should be altered or repealed, their power to declare by special act two persons to be husband and wife was unconstitutional. The legislature has the right to cure technical defects and informalities which do not affect vested rights. Retrospective statutes, passed for the purpose of curing defects in legal proceedings, where they are in their nature irregularities only, are not unconstitutional. The rule applicable to cases of this description is substantially as follows: "If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something, the necessity for which the legislature might dispense with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statut...
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