Stockwell v. Inhabitants of Fitchburg , 110 Mass. 305 ( 1872 )

Chapman, C. J.

The accident happened in the central village of Fitchburg, and on or near Main Street. It appears by the plan that on the easterly side of the street is the hotel called the Rollstone House, and a building adjoining it called Patch’s Block. Main Street was relocated in 1850, and its easterly line as relocated appears on the plan. There was evidence tending to show that the public had used the space between the easterly line of the relocation and the Rollstone House and Patch’s Block for more than forty years, by travelling over it, and it is contended that it thereby became a way by prescription. But the presiding judge ruled that it was incumbent on the plaintiff, in order to establish a way by prescription, to show such use for a period of twenty years subsequent to said relocation. This ruling was correct. An existing highway may be located anew, either for the purpose of establishing its boundary lines or of making alterations in its grade or course or width. Rev. Sts. e. 24, § 9. Gen. Sts. c. 43, § 12. This implies that the road is discontinued so far as any part of it is excluded from the new boundaries. Commonwealth v. Westborough, 3 Mass. 406. Bliss v. Deerfield, 13 Pick. 102. Bennett Clemence, 6 Allen, 10. Bowley v. Walker, 8 Allen, 21. These authorities are not contradicted by Johnson v. Wyman, 9 Gray, 186. The case is unlike that of Sprague v. Waite, 17 Pick. 309. It is immaterial how it was originally established. If by prescription, the effect of a new location would be the same. After such new location and discontinuance, it would be necessary for the public, in order to gain a prescriptive right of way over an additional tract of land by the side of the road, to do so by a user of twenty years.

The plaintiff’s accident did not happen within the limits of the highway as relocated, but between the highway and Patch’s Block. There was a brick sidewalk extending from the easterly curb line to the buildings, with nothing to'indicate the line of the street. Within the lot belonging to Patch’s Block, and some distance from the east line of the street, there was a cellar-way, with stairs, into which the plaintiff fell, it being very dark. He was coming from the Rollstone House, and it did not appear that he had been within the limits of the street before he came to the cellar-way. He fails to show, therefore, that when he came upon the defect complained of he was travelling upon any way in which the defendants were under obligation to provide for his safety.

' It is further contended that there is evidence that the town made repairs upon this place within six years before the time of the accident, and therefore is liable under the Gen. Sts. o. 44, § 26. It appears that the work referred to was done in 1869. The town had raised the grade of the street. Patch raised the steps of his cellar-way, and raised the grade of the land between his block and the sidewalk. The town relaid the bricks upon it, and he was to make no claim for damage for raising the grade of the highway in front of his block. The work done under this contract cannot be regarded as such a repair of the way as is contemplated by the statute. It was done not for the town, but for Patch, as a compensation for damages to the owner of the land for which- the town was liable in consequence of having raised the grade of the street. There was no evidence to go to the jury on this point.

It is also contended that even if the cellar-way was not within the limits of the highway, this action may be maintained, there being no visible objects to mark the boundary between the highway and that part of the brick walk which lies beyond it. But towns are not obliged to erect railings for the mere purpose of preventing travellers from passing beyond the limits of the high* way. Railings are necessary when defects are in such close proximity to the travelled way as to make it unsafe to travel upon it and near its boundary, and not otherwise. Sparhawk v. Salem, 1 Allen, 30. Macomber v. Taunton, 100 Mass. 255. Murphy v. Gloucester, 105 Mass. 470. There was no obligation upon the defendants to mark the boundary of the highway upon the brick sidewalk. Exceptions overruled.