Baker v. Inhabitants of Dedham , 82 Mass. 393 ( 1860 )

Chapman, J.^*

It is well settled that the obligation of towns in respect to ways is wholly created by statute. When a highway is laid out and established by the county commissioners, all that towns have to do is, either to cause it to be made to the acceptance of the commissioners, or to pay the expense which the commissioners shall incur in causing it to be made. In this respect, they have their choice. After it is made, their remaining duty is to keep it in repair, so that it shall be safe and convenient for travellers. But there is no statute requiring them to keep in repair the private ways of individuals which may lead into it or pass under it.

The plaintiff has a private way passing under the highway in question, and this action is brought against the town for not keeping that way in repair. There being no statute requiring them to do this, the action cannot be maintained. The case is not strengthened by the contract made by the turnpike corporation with the plaintiff; for when the county commissioners laid out the turnpike as a highway, they had no authority to transfer the duty of performing this contract to the town, nor does it appear that they attempted to do so. And even if the town had authority to bind themselves to the plaintiff by agreement to keep his way in repair, there is no evidence tending to show that they have made such an agreement.

Exceptions overruled.

* Metcalf, J. did not sit in this case.