Chase v. City of Worcester

Wells, J.

The trial of this case appears to have been conducted upon the supposition that the county commissioners, in widening Corbett Street and ordering the change of grade, were acting under the authority of the several statutes known as betterment acts. But, in our opinion, those statutes have no application to proceedings before county commissioners, whether those proceedings relate to highways or to streets in cities that are not county roads.

The act of 1866, c. 174, gave to the board of aldermen of the city of Boston power to lay out, alter and change the grade of streets, and assess a portion of the expense upon abutters. But this power was one which they might exercise or not in their discretion. It was not exclusive of the power which had previously been vested in that board to lay out and alter streets under the general provisions of law. By § 10 it is expressly so provided and declared.

The special authority conferred by this statute was extended in 1868, by chapter 75 of the acts of that year, to all the cities of the Commonwealth; “provided, that in any city where the power to lay out and alter the streets in such city is vested in any other board or persons than the board of aldermen, such board or persons shall have the same power and authority as the board of aldermen of the city of Boston.” In the city of Worcester, that power was vested in the city council. The city council therefore is the board thus designated to exercise the special powers defined in the act of 1866, c. 174; and they are special powers, confided to the city council as" exclusively as if they had been given to the city council eo nomine by the terms of the act by which they are conferred. The phraseology of the proviso was doubtless intended to obviate any difficulty which might arise from a want of uniformity in the organization of city governments, or in the designation of the board to which the power to lay out and alter streets within the city may have been confided. County commissioners are clearly not clothed with any concurrent authority by virtue of the designation contained in this proviso. It looks to proceedings which are confined to the city limits, and to a local board within the city, corresponding to the board of aldermen in Boston. If it had been intended that county commissioners should exercise any of the powers under these acts, the authority would have been conferred upon them by their well known and long established official designation.

Under the general provisions of law relating to ways in towns, county commissioners have power to lay out and alter such ways* if the selectmen “ unreasonably refuse or neglect ” to do it. Gen, Sts. c. 43, § 67. Like authority is reserved to the county commissioners in the act establishing the city of Worcester. St. 1848, c. 32, § 12. But no such authority is given to them under the betterment acts. None can be derived from the act of 1866, c. 174, because the board of aldermen of the city of Boston had the supreme authority. In extending that act to all the cities, no such appellate authority is provided for. Proceedings under the powers thus given do not take the place of those which are authorized by previously existing laws; because, as already suggested, all those provisions are expressly retained in force. We find no indication that proceedings in cities, under these special powers, were intended to be subject to the appellate control by county commissioners, in the manner provided for such control in regard to ways laid out or altered in the ordinary mode.

We are of opinion therefore that county commissioners have no authority under the betterment acts to institute proceedings in any city, to be conducted under those acts either by themselves or by the city council or other board of a city in compliance with their order.

In widening Corbett Street, and ordering the change of grade, the county commissioners must be held to have acted under their general authority as conferred by the Gen. Sts. c. 43, § 67, and St. 1848, c. 32, § 12. It follows, that the provisions of law as contained in the General Statutes are applicable to these proceedings ; and the mode of estimating the damages as prescribed in o. 43, § 16, should have been adopted. This requires that “ the benefit, if any, to the property of the party by reason thereof,” shall be allowed, “ by way of set-off ” to the damages caused by the location and construction of the new or altered way. As this was not allowed, and the evidence offered to prove it was rejected, the verdict must be set aside.

As some of the questions of evidence may be expected to arise in the same or similar form, upon another trial, we deem it proper to proceed to consider them now.

1. The release of damages was not competent, as a release because the alterations were not made in accordance with it. But we think that this, as well as the previous release of dam ages on Main Street, with which Corbett Street connected, was admissible as an admission by the petitioner, tending to show that at that time he considered that his estate would derive some benefit from improvements similar to those which were afterwards made. If the variation from those contemplated by the release was such as to destroy the force of the supposed admission, it was open to explanation by him so as to make that appear. . But the jury were the proper judges of the pertinence - and weight of the evidence.

2. The damages to the petitioner are not properly to be measured by the cost of such improvements or changes as he may think desirable to make to adapt his estate to the new condition of the streets. Expenditures, necessary to restore structures upon the premises to their former condition relatively, may be recoverable as a part of the incidental damages. But improvements, substantial changes, such as appear to have been made by this petitioner, are not of that character. The dwelling-house which he removed was fifty-two and one half feet from Corbett Street. However advantageous its removal might be, it was not rendered necessary by the alteration and grading of Corbett Street.

Aside from the value of the land taken, the damages to the petitioner were the amount of depreciation in value of the remaining land, taking into consideration all the circumstances of the condition in which it was left by the changes made in the street, and its capabilities either for sale or valuable use in that condition, or for improvement in such mode as the owner might choose.

The expenses of particular improvements, which the petitioner subsequently saw fit to adopt, were not properly to be taken as a part of his damages; and the evidence of the amounts so expended or required was improperly admitted.

The other points are not so presented as to require any decision at this time.

Verdict set aside.