Vigeant v. Marlborough

Full title: JACQUES VIGEANT vs. CITY OF MARLBOROUGH

Court: Supreme Judicial Court of Massachusetts. Middlesex

Date published: Mar 2, 1900

56 N.E. 708 (Mass. 1900)

56 N.E. 708

Opinion

January 16, 1900.

March 2, 1900.

Present: HOLMES, C.J., MORTON, LATHROP, BARKER, HAMMOND, JJ.

Raising of a Public Highway by a Street Railway Company — Petition for Damages — Action against City.

On a petition, under Pub. Sts. c. 52, §§ 15, 16, for a jury to assess damages occasioned by raising the grade of a street in front of the petitioner's premises by a street railway company in the construction of its railway, it appeared that the act of raising was that of the railway company alone and was not something done for the purpose of keeping the way safe and convenient for travel; and the evidence did not even show that it was done to the satisfaction of the superintendent of streets, much less that it was done by him or by the city. Held, that the judge rightly ordered a verdict for the respondent.

PETITION, under Pub. Sts. c. 52, §§ 15, 16, for a jury to assess damages occasioned by raising the grade of a street in front of the petitioner's premises by a street railway company in the construction of its railway. Trial in the Superior Court, before Blodgett, J., who ruled that the claim could not be maintained and directed a verdict for the respondent. The petitioner alleged exceptions, which appear in the opinion.

C.H. Stebbins, (R.H. Benny with him,) for the petitioner.

J.W. McDonald, for the respondent.

BARKER, J.

We are of opinion that the verdict for the defendant was rightly ordered. The action of the city government granting the street railway company the right to build its railway along certain streets was not an order for specific repairs or for a change of grade within the meaning of Pub. Sts. c. 49, and if that action had been such an order the present petition could not be maintained, because it was not seasonably brought. The raising of the street in front of the petitioner's premises was the act of the railway company alone, and was not something done for the purpose of keeping the way safe and convenient for travel. The evidence did not even show that it was done to the satisfaction of the superintendent of streets, much less that it was done by him or by the city. Purinton v. Somerset, 174 Mass. 556.

Exceptions overruled.