Sullivan v. City of Fall River

• Decision Date: 29 June 1887
• Citation: 144 Mass. 579,12 N.E. 553
• Parties: SULLIVAN and others v. CITY OF FALL RIVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 579

12 N.E. 553

SULLIVAN and others v. CITY OF FALL RIVER.

Supreme Judicial Court of Massachusetts, Bristol.

June 29, 1887

COUNSEL

D.V. Sullivan, for defendant.

The law is well settled that, where no damages are awarded, it is equivalent to a determination that none have been sustained. Monagle v. County Com'rs, 8 Cush. 360; Sisson v. New Bedford, 137 Mass. 255. Such damages are assessed by the tribunal which does the act, and is of course aware of what is going on. On the other hand, the act of road commissioners or surveyors of the highways creates no permanent condition of the easement, and may be changed next day, at the notion of a road surveyor, and it is not of record anywhere, and until it is actually done has no potential or legal existence; and for an assessment of damages the act complained of must be called to the attention of the mayor and aldermen by a petition. Such assessment could not be included in any act of record. Such assessment never could be made till the labor or work was completed, as there would be no description or condemnation to contemplate in assessing damages. The two proceedings differ widely in their legal nature, characteristics, and method of relief. The statutes clearly recognize the distinction. The jurisdictional act of record is provided for. Pub.St.Mass. c 49, §§ 65, 68-70; Monagle v. County Com'rs, ubi supra; Sisson v. New Bedford, ubi supra. See, also, Pub.St.Mass. c 49, §§ 10-12, 15, 16, 20, 32, 58, 59. An act merely "done for repairs," without permanent enactment, is provided for in Pub.St.Mass. c. 52, § 15.

The act of the defendant, for which this petition is brought, was such an act by a tribunal of record, and whatever work was done, was done because of and in fulfillment of the order set forth in the answer, viz., the act of December 23, 1870. Brady v. Fall River, 121 Mass. 262; Sisson v. New Bedford, ubi supra. The order of May 18, 1875, was a benefit to the petitioners' property, and not an injury. The defendant, if it so elected, might have made an assessment of betterments for laying said curbing and sidewalk. Pub.St.Mass. c. 51, § 11. The case of Cambridge v. County Com'rs, 125 Mass. 529, was not a case of "specific repairs," and so distinguishable from the case at bar. See Fairbanks v. Mayor, etc., of Fitchburg, 132 Mass. 48; Lawrence v. Nahant, 136 Mass. 481. If any work was done by the superintendent of streets which in any way injured the property of the petitioners, unless within the scope of the powers conferred upon him as superintendent of streets, the defendant is not liable for the same in this action. Haskell v. New Bedford, 108 Mass. 208. The questions submitted to the jury were questions which it had no right to try. Riley v. Lowell, 117 Mass. 76; Pub.St Mass. c 49, §§ 44, 105.

Cummings & McDonough, for petitioners.

The respondent admits in its answer that the order of May 18 1885, was an order for specific repairs, and this petition is rightfully brought under Pub.St. c. 49, § 79. No damage having been assessed by the mayor and board of aldermen at the time of the passage of the order of May 18th, it was to be presumed that, in their opinion, the petitioners would sustain no damage, and the petitioners were entitled at once to apply for a jury without first presenting a petition to the mayor and board of aldermen. Monagle v. County Com'rs, 8 Cush. 360. Sisson v. New Bedford, 137 Mass. 255. The respondent passed the order of May 18th without specifying at what grade the curbing was to be laid, and avers in its answer that, in pursuance of said order, and in execution of the powers conferred thereby, that the superintendent of streets laid the curbing at the grade established in 1870, and the respondent is liable for the acts so done by the superintendent of streets. Benjamin v. Wheeler, 8 Gray, 409; Burr v. Leicester, 121 Mass. 241; Denniston v. Clark, 125 Mass. 216. The acts of the defendant city in constructing the street, and opening the same to public travel in 1870 at the then existing grade, and the subsequent repairs and improvements made thereon with reference to the same grade, until the order of May 18, 1885, was passed, were such as to warrant the petitioners in believing that the grade established in 1870 had been abandoned by the city, so that they were entitled to damages for any change of the grade from what it was prior to the order of May 18, 1885. The case at bar is exactly in line with Cambridge v. County Com'rs, 125 Mass. 529. The original construction in 1870, and the subsequent repairs made by virtue of the order of May 18th, are distinctly independent proceedings. Snow v. Provincetown, 109 Mass. 123. The respondent cannot now disclaim the effect which it intended and gave to its order.

OPINION

FIELD J.

The distinction between specific repairs upon a highway or town way, ordered under Pub.St. c. 49, § 10, or § 65, and repairing a highway or town way by raising or lowering it, or doing some other act upon it, under Pub.St. c. 52, § 15, was discussed, and the history of these statutes carefully traced, in Sisson v. New Bedford, 137 Mass. 255. Under the provisions of the statutes first cited, the specific repairs are ordered by the persons authorized to lay out a highway or town way, and the damages are to be estimated by them. Pub.St. c. 49, §§ 15, 16, 32, 68, 79. The reason for these provisions appears in St.1835, c. 152, § 7, where they were first enacted in reference to highways. That section reads: "That whenever *** the county commissioners *** shall be of opinion that the existing highway, between the termini named in the petition, can be so far amended as to supersede the necessity of laying out a new highway, or altering the location of existing ways, they shall, after due notice to the towns interested, be empowered and required to direct specific repairs to be made in the existing ways, so as to promote the public convenience."

The commissioners on the revision of the statutes in 1858 recommended a similar provision in reference to town ways and Gen.St. c. 43, § 59, enacts that "the selectmen of the several towns may lay out or alter town ways for the use of their respective towns, *** or may order specific repairs to be made upon such ways." Where county commissioners order specific repairs upon highways which occasion damage to persons or property, they are required to "estimate the same, and make return thereof." Gen.St. c. 43, § 15; Pub.St. c. 49, § 15. When selectmen or road...