Henshaw v. Hunting , 67 Mass. 203 ( 1854 )

Merrick, J.

This action is brought to recover damages for a trespass, alleged to have been committed by the defendant, in tearing down a fence belonging to the plaintiff, erected by him on land claimed by the city of Boston as a part of a public highway named First Street, in that part of the city called South Boston, and for making and maintaining said street over the premises. It is conceded by the plaintiff that all the acts complained of were done by the defendant under the authority and direction of the mayor and aldermen of the city of Boston; and that if the land, upon which he entered and took down the fence, was within the limits of a highway, which the city had a right, and was under legal obligation, to maintain, no ti-ospass Was committed, and this action cannot be maintained.

This therefore is the first and chief question arising upon these conflicting claims of the parties.

The laying out of streets and public ways in South Boston was originally under authority specially granted, and upon a plan peculiar to that locality. The act of the legislature, passed on the 6th of March 1804, (St. 1803, c. 111,) by virtue of which that particular territory was annexed to the then town of Boston, .the record of the proceedings of the selectmen of that town, at their meeting on the 27th of' February 1805, together with the .plan of Mather Withington therein referred to, are all submitted to the consideration of the court in- the statement of facts agreed on by the parties, and afford the means of ascertaining the extent of the special authority with which the selectmen of the town of Boston were invested, and how far, and in what manner, it has been executed. From these documents it appears that in pursuance of such authority the selectmen did, at the time of their meeting before mentioned, lay out a large number of streets through and over the entire tract of land then recently annexed and added to the town.

The legal effect of these proceedings of the selectmen in laying out streets in South Boston has often heretofore been a subject of consideration in this court, but is now perfectly well settled, and can no longer be regarded as in any degree an open question. The land, over which those streets were so laid out, was thereby devoted and appropriated to the public use; and nothing further remained to be done to constitute them, to all intents and purposes, common and public highways, but an order or adjudication by the selectmen, that it was expedient that they should be completed. Until such order or adjudication should be made, the land was to remain in the occupancy and possession of its respective owners, subject however to the right acquired by, and vested in, the town of Boston, by the laying out and location there of the several streets over and upon it; And as the public convenience and necessity did not afterwards require all the streets, nor all the parts of any one of them, to be opened; wrought, and completed for public use, at one and the same period of time, it. has been held competent for thé selectmen to exercise a discretion upon the subject, and to make such occasional orders for the completion of such parts of those streets as existing exigencies and the public convenience then required. These conclusions, deduced from the provisions of the statute under which streets and highways were originally laid out and established in this particular locality, have been heretofore so fully exposed and illustrated in opinions given upon the decision of former cases in this court, that a reference to them renders further discussion upon the subject at this time unnecessary and superfluous. Commonwealth v. Boston, 16 Pick. 442. Wright v. Tukey, 3 Cush. 290. Bowman v. Boston, 5 Cush. 1. Fernald v. Boston, Suffolk, November term 1853.

The selectmen of Boston, on the 27th of February 1805, determined and agreed to lay out streets, according to the plan of Mather Withington,through the whole territory of South Boston. The record of their proceedings contains a brief description of those which were then and so laid out. Among them are three, described in the record as being “ to the northward of Broadway and parallel thereto, and fifty feet wide,” and the most northerly of them, which is called First Street, is said to be 250 feet distant from that next to it.

On inspection of the plan of Withington, there is found delineated, easterly of Dorchester Street, a section of a street, corresponding, as far as it extends, with the description of First Street, in the record of the selectmen. There is also found on the same plan, westerly of Dorchester Street, the delineation of a section of a street extending from Turnpike to B Street, and at its eastern termination are written the words “ First Street.” The defendant contends that this is a part of First Street, although it does not correspond in all particulars with the description of that street in the selectmen’s record. It is only 180 instead of 250 feet distant from Second Street; it is marked as 40 and not 50 feet in width; and its course and direction are not parallel with Broadway.

It is admitted by the plaintiff, that the street actually laid out and worked for public use, upon the land from Turnpike to B, Street, corresponds with and is in conformity to the sketch and delineation of this section of a street on the plan of Withington, and does in fact embrace the land in controversy, where the defendant entered and tore down the plaintiff’s fence. But he insists that the evidence is wholly insufficient to show that any part of First Street was laid out according to this delineation ; that the clear and definite description of that street, on the record of the meeting of the selectmen, necessarily excludes from it all the land indicated by that delineation; and that in fact, if the selectmen ever intended to locate a way in this particular place and direction, and over this land, the location, by reason of the discrepancy and contradiction between the description in the record and the delineation on the plan, is void for uncertainty.

There is no doubt but that there are discrepancies in the several particulars above alleged and enumerated. Difficulties of a similar character, if not of equal magnitude and importance, have been discovered concerning other ways laid out at the same time in South Boston. But it has been held, that if taking the whole together—that is, the description in the record and the delineation on the plan—the streets intended can be identified and drawn on the ground, misdescription will not avoid or vitiate the laying out of the way, any more than what is called falsa demonstratio in a deed. Wright v. Tukey, 3 Cush. 299. And upon that principle, considering the distinctness and certainty of the manifestations upon the plan, and that the delineation upon it varies only in part from the description contained in the record, it seems to us that there is no real difficulty in determining that the section of way in question was laid out as a part of First Street.

Streets were laid out by the selectmen, as stated in the record, through the whole tract of land of which South Boston consists, according to the plan of Mather Withington. The record, by such reference, proves the laying out of every street delineated on that plan. If any one of them should be omitted, it would not be true that streets were laid out through the whole tract. The plan therefore exhibits exactly what the selectmen intended to do, and what they in fact did do. It shows that they laid out all the streets precisely as thereon delineated. This is just as true of the street, or section of a street, extending from Turnpike to B Street, as of any other drawn out and marked upon it. And though in some particulars misdescribed in the record, yet neither the fact that it was actually laid out, nor the precise plan of its location, is left in any kind of doubt or uncertainty. On the contrary, both are distinctly shown and conclusively established by the plan, which, by the express terms of the record, must be regarded as a complete exemplication of the streets laid out. The plan fixes and identifies this street, together with its direction, course and boundaries; and it is not pretended by the plaintiff that there is any difficulty in drawing it upon the ground, as it is exhibited and delineated upon the plan. The description therefore, in other particulars, cannot be allowed to avoid it.

Other considerations lead to the same conclusion. Broadway was laid out from the eastern shore of the peninsula to Turnpike Street. The record describes three streets, First, Second, and Third, as laid out northerly of and parallel to it. As no particular limitation is described in respect to either of them, it is to be presumed that they are coextensive with it, and have the like termination. ' For this reason, it is necessary to continue and extend First to Turnpike Street. It is so delineated on the plan. And in this particular there is an exact correspondence between the delineation on the plan and the description in the record. There is also a similar correspondence in another particular. First Street' is described in the record as being the street laid out “ oh the northern shore in Boston Harbor,” and the plan shows that the section of the street from Turnpike to B Street is laid down in that exact locality. Its northern boundary is shown by the plan to be exactly coincident with the shore, and upon the sea wall which was then partially or wholly built or erected there. The description in the record calls for a street in this line, and according to this boundary; and such a street is found 'drawn upon the plan. There can therefore be no doubt that it 'was then laid out.

-N.o practical difficulty-has ever occurred in identifying this section of First Street, and drawing it upon the ground. Its completion as a way for public use, over a very large part of it, was effected many years since; and no controversy is suggested as having ever arisen in relation to the point of its commencement, its course and direction, or the boundaries within which it was limited. And though these boundaries do not correspond in all particulars with the description in the record, they do in many, and they are coincident with the lines drawn on the plan. Besides; they are adapted to the land over which the street is laid, which indeed could not have been located parallel to Broadway as far west as Turnpike Street, and as distant from it as described in the record, without having extended several hundred feet into the water, beyond the northern shore of South Boston. This, we think, is obviously the misdescription, which must be rejected. This being done, all difficulty disappears. The place of the location of the street is exactly indicated by other parts of the description in the record, is precisely identified by the plan, and may be drawn on the ground without embarrassment or perplexity. This has been done; and it is agreed by the plaintiff that, as thus defined and established, the premises in controversy are within the limits of First Street.

It is unnecessary, in the view we have taken, to place reliance upon the deeds and conveyances which have been referred to. But it may be seen from these, that they who were the owners of the land at the time of, or immediately after, the laying out of First Street, recognized the existence of such a way over the land in controversy. • The South Boston Association conveyed to the Boston Glass Manufactory, in the year 1811, a tract of land, including the premises owned by the plaintiff, on both sides of a street called by that name, and they refer to a plan on the back of their deed, in which the street is exhibited precisely as it is delineated by Withington. It is also recognized in subsequent conveyances. And in the deed of Edmund Munroe, under which the plaintiff derives all his title to the adjacent land, (he having in fact no title to the land within the limits of the street, except what he has acquired by an alleged adverse possession,) First Street is expressly named and mentioned, and is also shown in a plan drawn upon the back of it. So that for a long period, from a few years after the action of the selectmen of Boston in 1805, to the time when the plaintiff became interested in the adjacent land, and indeed down to a more recent date, all the abutters constantly recognized First-Street as a well known and existing way. It seems scarcely necessary to add, though it tends to the same result, that a large portion of this particular section of First Street, namely, from Turnpike Street to a point somewhat easterly of A Street, was early completed, and for many years has been opened and appropriated to public use, in the very place, and upon the exact line, designated in the plan of Withington.

The objection of the plaintiff, that if First Street was legally laid out as before mentioned, in 1805, he has since acquired a title to the land over which it was laid, by adverse possession for more than twenty years, cannot, upon the facts agreed, be sustained; first, because, as has already been stated, the plaintiff shows no deed to himself of the land in controversy, from any former occupant; and secondly, because his possession, and the possession of those who preceded him, was perfectly consistent with the rights of the town of Boston. The very nature of the rights vested in the town by the laying out of the streets in South Boston rendered it impossible that there should be, as against them, any adverse possession, until an official order or adjudication was made that the street should be completed; or until some act or acts were done, which were equivalent thereto. There never having been any such order for-the completion of the part of First Street, now in controversy, previously to the year 1851, no prior possession or occupancy of the land within its limits was adverse to the rights of the city of Boston, and no title destructive of their rights could in that way have been acquired.

Nor can the plaintiff avail himself of his other objection, that the location of this particular section of First Street was void, because it was upon and over land covered by navigable waters. No doubt, the principle averted by him is correct. Navigable waters cannot lawfully be obstructed by highways, whether laid out by towns, or by county commissioners, without previous permission given by the government. But upon the facts stated by the parties, it does not appear that this part of First Street was laid out over land covered by navigable waters, or that a wrought way there would be any impediment or obstruction to navigation. On the contrary it appears, we think, very satisfactorily, that the proprietors of the upland had then exercised their right as owners of the flats, had filled them up, and excluded the sea therefrom. It is expressly stated, that the sea wall, built to prevent the washing away of the earth filled in, was commenced as early as the year 1803, though it was not finished before 1807. But it might have been, and probably was, so far completed in 1805, as to be a temporary security. Upon Withington’s plan, the line of shore, above which the water did not flow, is plainly defined, and shows that the premises in controversy had been already reclaimed from the sea, and made solid like the adjoining upland. It was in this condition of things that the legislature gave authority to the selectmen of the town of Boston to lay out such streets in South Boston as in their judgment would be for the common benefit of the town and the proprietors of the land. And this authority was executed. The legislature having conferred the authority under which the street was laid out, after the flats in this place had been filled up, it is not open to the plaintiff to object that the way is a nuisance, or that its original location was a mere nullity.

Upon the conclusions already stated, the defendant is entitled to judgment; and therefore it is unnecessary to consider the other questions which were discussed at the argument of the case.

Judgment for the defendant