Brown v. City of Lawrence , 120 Mass. 1 ( 1876 )

Ames, J.

The only question raised by this bill of exceptions relates to the competency of a portion of the evidence admitted at the trial, namely, the vote of the city council of Lawrence. It is provided by Gen. Sts. c. 44, § 26, that if it appears that the town against which the suit is brought has at any time, within six years before the injury complained of, made repairs upon the way, it “ shall not deny the location thereof.” It is argued on behalf of the plaintiff, that the act of making such repairs is only an implied admission of the continued existence of the way, and is one mode of proof of the defendant’s recognition of it as such; Commonwealth v. Holliston, 107 Mass. 232; but that the vote of the city council of Lawrence is a formal, express and solemn recognition of the liability of the city to make repairs upon the way in question, provided any should be found to be necessary. But the meaning of the statute is that when a town has made repairs upon the way, as above described, it shall be estopped to deny its proper location. There is no provision that any other act or proceeding on the part of the town, short of a regular laying out, shall have that effect. No authority is given to towns, or to city councils, to establish town ways or public ways of any description by mere admissions or votes, however formal, or by any proceedings whatever, except such as are pointed out by statute. The act of repairing a public way is unequivocal and irrevocable in its nature, and the Legislature has deemed it of sufficient importance to give to it the effect of an estoppel. A vote to make repairs, so long as it remained unexecuted, as it did in this case, may be reconsidered and revoked ; and there is no law attaching to it the consequences which follow the actual making of repairs. The defendant’s objection to the evidence was therefore well taken, and the

jExceptions are sustained.