Como v. City of Worcester
| Decision Date | 26 February 1901 |
| Parties | COMO v. CITY OF WORCESTER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Marvin M. Taylor, for petitioner.
Arthur P. Rugg, for defendant.
A fundamental question in this case is whether the decree laying out the street fixed a grade for the construction of the street throughout its entire width, or whether the grade mentioned was only for a part to be constructed along the center line, of such reasonable width as the authorities of the city should determine. The report gives us only an extract from the decree, and, although it purports to be the material portion, we are not certain that it shows everything bearing upon the question now before us. So far as appears the decree was silent in regard to the construction of the street, except as it prescribed a grade to which the street was to be wrought along the center line. The term 'grade' refers to the physical condition of the street when its construction is completed. The right of county commissioners and city and town authorities to prescribe the grade of a street or highway in connection with the location of it is conferred by Pub. St. c. 49, §§ 9-80, which authorize them to determine and specify the manner in which the way, location, or alteration is to be made. If an order of location prescribes a grade for the street throughout its entire width, the damages are to be assessed upon the assumption that the way will be constructed to that grade from side to side of the location. In setting off benefits to adjacent lands when assessing damages for the taking of lands, it will be assumed that the way will be constructed according to the grade established by the order of location, whether it requires grading throughout the entire location, or only for a reasonable width in the middle of it. If the city of town fails to construct the street within a reasonable time according to the established grade it will be deemed to have abandoned and lost its right so to construct it. Its right is founded upon the order, and is only incident to the execution of the order. City of Cambridge v. Middlesex Co. Com'rs, 125 Mass. 529; Sullivan v. City of Fall River, 144 Mass. 579-586, 12 N.E. 553; Albro v. Same, 175 Mass. 590, 56 N.E. 894. In Metcalf v. City of Boston, 158 Mass. 284, 33 N.E. 586, it was assumed both by the counsel and the court that abutting owners who are interested in the construction of a street, and whose damages have been assessed upon the assumption that they will receive benefits from the location and construction of the street according to the order, may have a writ of mandamus to compel the construction according to the order. In that case the order of the authorities was 'that the parcel of land above described be, and the same hereby is, taken and laid out as a public street or way of the said city with the name of 'Massachusetts Avenue,' and the grade thereof is established according to a plan of the said laying out and profile of the grade,' etc. The street was 200 feet wide and about 2 miles long, and it was constructed 60 feet wide along the center line. Except the above statement in regard to the grade, the order was silent as to the construction of the street. It was held that this order did not contemplate a construction of the street or a grading of it throughout the entire width of the location, but only to such a reasonable width as should meet the requirements of the public. The only question in every such case is, what is the construction contemplated by the order of location? See City of Cambridge v. Middlesex Co. Com'rs, 125 Mass. 529-531; Brady v. City of Fall River, 121 Mass. 262-264. In the words of Mr. Justice Colt in Snow v. Inhabitants of Provincetown, 109 Mass. 123-125, the damages for the original location include 'compensation for changes in the surface of the street, injurious to the owners, which were contemplated as necessary in its original construction.' When the construction is completed as contemplated by the order of location, or when, by failure to take action within a reasonable time, the city or town and the abutters have waived their right to have the street graded according to the order, the actual grade then existing becomes the grade by which the future rights of the parties are determined. In the present case, if there is anything in the decree which calls for a grade throughout the entire width of the street, the mere fact that the city has wrought the street through only half of its width does not affect the petitioner's right to damages. He is entitled to have his damages estimated on the assumption that the street will be graded according to the decree, and he is entitled to have it so graded within a reasonable time.
The city council passed an order directing the construction of the street by the street commission in accordance with the decree laying it out, but did not particularly direct the mode of construction. This order stated that the estimated expense was $15,000. This estimate contemplated making the wrought part of the way 60 feet in width along the center line of the location, which was 120 feet wide. The street commission completed this construction to a width of 60 feet at the prescribed grade, according to the decree, expending in the work the whole of the $15,000 appropriated for it, and the street was opened for travel. Afterwards the board of aldermen assessed betterments upon abutters in accordance with the decree laying out the street. Under the statute this assessment was not to be laid until the work of construction was completed. Pub. St. c. 51, § 1; Chase v. Board, 119 Mass. 556-563; Foster v. Board, 133 Mass 321-327. Unless there is more in the decree than appears in the record now before us, this construction in pursuance of the decree was a completion of the street laid...
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