City of Cambridge v. County Commissioners of Middlesex , 167 Mass. 137 ( 1896 )

Allen, J.

By Pub. Sts. c. 49, § 13, when application is made to the county commissioners by a town to locate anew a road within such town, they may for the purpose of establishing the boundary lines of such road, or of making alterations in the course or width thereof, locate it anew. Under this authority, the commissioners may widen the old road, and may depart entirely from its- boundary lines for short distances, and so much of the old road as is not included within the new lines is thereby discontinued. Hobart v. Plymouth, 100 Mass. 159. Stockwell v. Fitchburg, 110 Mass. 305. To relocate is the same thing as to locate anew; and under a petition to relocate, the commissioners may widen a road and change its grade, and include within its boundaries new strips of land, and exclude from its boundaries other strips of land. Hyde Park v. County Commissioners, 117 Mass. 416. Richards v. County Commissioners, 120 Mass. 401. See also Lincoln v. Commonwealth, 164 Mass. 1, 9; Taft v. Commonwealth, 158 Mass. 526, 551.

The statute now under consideration (St. 1895, c. 354, § 6) authorized the county commissioners to “ determine the boundaries of and locate anew, in substantially its present position,” the road in question. It does not in express terms authorize an-alteration in the course or width thereof, but such authority is implied. The authority to locate anew includes the authority to make some departure from the old or existing boundaries. The limitation to substantially its present position restricts this authority to such changes of boundary as will be comparatively slight. The county commissioners were authorized to proceed upon the petition of the selectmen of Lexington or Lincoln, as well as of the city of Cambridge. This is an implied recognition that other interests besides those of the city of Cambridge might be recognized. Under such a statute much is necessarily left to the judgment and discretion of the commissioners. This court cannot interfere unless they have clearly exceeded tlieir power. Their good faith .is not impugned. The question is whether the statute should receive so strict a construction as to show that they exceeded their power. On an examination of the various facts which are not in dispute, and of the plans, we are unable to hold that they did. The chief alterations relied on are enlarging the location to a uniform width of fifty feet, and the worked part to a uniform width of twenty-four feet.

An increase of travel upon the road was probable. Several other roads entered upon it. Authority to require a change of grade was given in express terms. The old boundaries were irregular and not of uniform width, and in some instances were unknown. Authority is implied to require the worked part of the road to be of reasonable width, having reference to the raising of the grade in some places; and a width of twenty-four feet is not plainly unreasonable. We cannot say that the commissioners exceeded their power. Petition dismissed.