Damon v. Inhabitants of Reading , 68 Mass. 274 ( 1854 )

Dewey, J.

The only question necessarily to be decided in these cases is that as to the liability of the town of Reading to pay the damages and costs that have arisen on these petitions. The proceedings on the part of the county commissioners, in reference to locating anew Salem Street, a highway in Reading, were upon an application from the said town, asking for such new location and establishment of boundaries. Such proceedings are wholly at the expense of the town applying therefor, and not properly chargeable upon the county. “ The town, making such application, shall pay all the expenses arising in the case.” JEtev. Sts. c. 24, § 9.

The only doubt suggested is as to what is embraced in the term “ all the expenses.” It is argued that this does not include damages allowed to individuals by reason of such new location and establishment of boundaries, but only the other attendant expenditures. In support of this construction, reference is made to the use of the word “ damages,” as descriptive of the charges for injury to land owners; and to the provision that all damages allowed for laying out, establishing or altering highways, shall be paid by order of the commissioners out of the county treasury. Eev. Sts. c. 24, § 42.

But we are of opinion that that section refers to the ordinary cases of applications from individuals, for laying out, establishing or altering highways, and not to the case provided for in § 9, under which these proceedings took place. In the St. of 1835, c. 152, § 8, from which this provision was taken, it was thus expressed: “ All expenses, which may arise, under the provisions contained in this section, shall be paid by the town making the application.”

Upon the best construction we are able to give to the existing statute, the court are of opinion that where the application proceeds from the town, asking for a new location, by the county commissioners, of an existing road within such town, the whole expenses incident thereto are to be paid by the town making the application.

As the county therefore had no interest in the matter, and the town has not appeared to argue the other questions raised in this case, the judgment of the court of common pleas, accepting the verdicts, is affirmed.