
    Brooks Bowman vs. The City of Boston.
    By St. 1803, c. ill, annexing to Boston that part of Dorchester now known as South Boston, the selectmen of Boston were authorized to lay out such streets, in South Boston, as in their judgment would be for the common benefit of the proprietors of the land, and of the town of Boston; provided, that no compensation should be allowed the proprietors for such streets as should be laid out within twelve months from the passing of the act; and provided, also, that the town of Boston should not be obliged to complete the streets so laid out sooner than they might deem it expedient: In pursuance of this authority, the selectmen, within the twelve months, laid out various streets over the entire territory of South Boston, and among others a very long street, denominated Second street, which subsequently became distinguished into two parts, namely, Second street east, and Second street west, of Dorchester street: The mayor and aldermen, in 1831, adopted an order, that Second street west of Dorchester street should be made passable, and subsequently passed orders, in 1834 tnd 1836, appointing committees to “ cause Second street at South Boston tc be repaired and put in good order ” and “ to be properly graded and gravelled; ” in pursuance of which, that part of Second street, known as Second street west, had been completed and used as a highway; but no part of Second street east, though occasionaEy used as a highway, had ever been ordered to be completed and made passable, unless included in the above orders: In an action against the city of Boston, to recover damages for an injury occasioned by a defect in Second street east, it was held, that in order to render the defendants liable, it was not sufficient to prove, that the way complained of had been so travelled and used as to become a highway de facto; it must appear, not only that such way had been laid out, but that the mayor and aldermen, by an official act. had determined upon its completion, that is, when the same, should be graded, fitted for travel, and opened for use; and that the orders above mentioned related only to Second street west.
    This was an action on the case, to recover damages for an injury sustained by the plaintiff, occasioned through a defect in a highway or street, called Second street, in that part of the city of Boston known as South Boston.
    The declaration contained two counts. The first alleged that the plaintiff, on the 8th of April, 1846, was driving in his wagon in Second street, above mentioned, and that, owing to a defect therein, to wit, a large hole or pit, he was thrown from his wagon and greatly injured. The second count alleged that the defendants had notice of the defect more than twenty-four hours before the accident, and were liable for double damages.
    At the trial, before Wilde, J., November term, 1847, the plaintiff gave in evidence a r.ecord of the town of Boston, reciting that the selectmen thereof had laid out the streets at South Boston, including Second street, in pursuance of the act of 1803, c. Ill, (passed March 6th, 1804,) for annexing a part of Dorchester to Boston ; also Mather Withington’s copy of the plan of said streets, the original plan being lost; and sundry proceedings of the mayor and aldermen, as follows: — An order, passed on the 7th of November, 1831, on the petition of Charles Henshaw and others, directing “ that Second street be made passable from Turnpike to Dorchester street, provided that a sum not exceeding five hundred dollars be expended during the current year; ”
    An order of the 15th of December, 1834, with the report oi a committee introductory thereto, “ that the sum of two thousand five hundred dollars be and hereby is appropriated for expenses already incurred for grading streets at South Boston; ”
    An order of the 23d of May, 1836, appointing a committee, “ with instructions to cause Second street, at South Boston, to be repaired and put in good order; ” and
    An order of the 27th of April, 1837, appointing a committee “with full powers to cause Second street, South Boston, to be properly graded and gravelled.”
    There was also in evidence a report of the committee of May 23d, 1836, appointed to repair and put in order Second street, which report was accepted by the mayor and aldermen. It stated that the committee had caused said street to be filled up and graded the whole length, being about four thousand five hundred feet, and made passable; that it was then receiving a portion of the travel; that.the work had been much more expensive than the committee had reason to expect; that the committee would have been unwilling to incur so great an expense, but for the decision of this court, (in the case of Commonwealth v. Boston, 16 Pick. 442,) that the city were bound by law to make said street; and that the committee were therefore of opinion that the only alternative was to comply, and make the street, leaving the cost out of the question.
    The plaintiff called Thomas Hunting as a witness, who testified that from the year 1836 he was one of the board of aldermen for six years including the year 1841; that for two years previous to the trial he had been and then was superintendent of streets; that he was one of the committee appointed in May, 1836, to cause Second street to be repaired and put in good order; that the committee made that portion of the same lying between Turnpike and Dorchester streets, that is, Second street west, and completed it in the year 1836; that he was also one of the committee appointed in April, 1837, to cause Second street to be properly graded and gravelled; that no earth was taken out of the other part of Second street, that is, Second street east, during that year, but some was taken therefrom the next year, not for the purpose of making Second street east a street, but for the purpose of repairing Second street west; that he could not say whether Second street east was left passable or not, or what his directions were in that respect, but that he probably told the workmen to leave it passable; that his object was only to make the street west, having no authority to make it east; that the street being laid out, he supposed they had a right to take dirt there; that the earth was not all taken at once, or at one season, but they were digging there for two or three years; that other persons (he supposed the owners of the land) besides those in the employment of the city were constantly taking away the earth from Second street east; that as the earth was taken away a cart-way was left, through which carts had passed, and where he had himself passed with safety, though he had seen no other carriages pass; that he knew of no order for opening Second street east; that although it was open so that people could pass, it was no more opened in 1846 than it was in 1836; that in 1846, before the occurrence of the accident to the plaintiff, he found people digging down and grading Second street east, who stated to him, in answer to his inquiry by what authority they were proceeding, that they were at work under an arrangement with the abuttors ; and that- upon inquiry of the board of aldermen, he ascertained that they knew nothing of the matter, and therefore gave himself no farther trouble about it.
    There was other evidence, somewhat contradictory, as to the amount of travel over Second street east, and the number of houses built there, and as to whether the street, had been made passable, before the accident to the plaintiff.
    The plaintiff also introduced evidence, that he was riding in Second street east, and was upset and injured, as set forth in his declaration; that persons had been digging there; that one of the city police had several days previously informed the city marshal that the place where the accident happened was dangerous, who replied that he would attend to it; and that persons in the employment of the city had taken gravel from Second street, near where the accident occurred, to be carried into First- street to fill up with.
    
      The defendants, at this stage of the case, objected, that upon the evidence introduced, it did not sufficiently appear, that the part of Second street where the accident happened (Second street east) had ever been established as a street or way, so as to render the defendants liable for injuries occasioned by any defect therein; and the judge being of this opinion, the plaintiff became nonsuit, subject to the opinion of the full court.
    The case was argued, at the last term, by G. Minot, for the plaintiff, and by P. W Chandler, city solicitor, for the defendants ;
    and the court having expressed an opinion, that upon the ground taken at the trial, the nonsuit ought to be confirmed, the plaintiff thereupon moved to set aside the nonsuit, in order to admit further evidence.
   Shaw, C. J.

This action is brought to recover damages under the general lawT, charging towns and cities for injuries sustained by travellers, in consequence of defects in highways. Rev. Sts. c. 25, § 22. The declaration alleged a defect in a certain highway, called Second street, in that part of Boston known as South Boston; and it became necessary, on the part of the plaintiff, in order to maintain his action, to prove that the place, at which he sustained the injury in question, was a highway, or town-way, which the city of Boston were bound to keep in repair. For this purpose, the plaintiff relied on and gave in evidence a vote of the selectmen of the town of Boston, passed in February, 1805. This vote was passed in pursuance of a special act of the legislature of the 6th of March, 1804, and laid out various streets and public ways over the entire peninsula of South Boston, then annexed to Boston, but which had before been a part of Dorchester, known as Dorchester Point. Amongst others, thus laid out, was a very long street, called Second street.

The plaintiff also offered in evidence a plan of Mather Withington, being a copy of the original plan, by which the said ways were laid out. The plaintiff likewise offered evidence of some travel over that part of Second street, at which the way was alleged to be defective, and of some work done thereon ; but the evidence was conflicting as to the amount of such travel, and as to the quantity of work, and there was no evidence of the authority by which the work was done. The judge, at the trial, upon the evidence, ordered a nonsuit, on the ground that the evidence was not sufficient to prove the place in question a public way. Two grounds of defence were taken, namely, 1st, That the evidence did not show that the street was so travelled and used, as to make it a way de fado, or give it the appearance of a travelled way, and that the plaintiff could not so consider it; and 2d, That it had not the legal character of a public way, so as to render the city responsible for its safety, good condition and repair.

The court have heretofore expressed an opinion, that upon the first ground the nonsuit ought to be confirmed. But a motion having been made to set aside the nonsuit, in order to admit farther evidence on this point, that the street was de fado used, and had the appearance of a way, it becomes necessary to consider the other ground. It would be useless to receive farther evidence to this point, if it could not avail the plaintiff; and if the place, at which the injury was sustained by the plaintiff, was not a public way, for the repair of which the city is responsible, the proposed evidence would be immaterial.

The streets at South Boston stand on a peculiar footing, in regard to their origin; but when completed and opened for use, they are in all respects highways; and the rights of the public, and the duties of the city, in regard to them, then attach. In the ordinary course of laying but highways, by the general law, two things must concur to make a complete highway, which the public may travel, and for the safety of which towns are liable: 1st. An adjudication that the way described is of common convenience and necessity, and the location of it; 2d. That it be levelled, graded, and opened to the public for use. Mere adjudication and location alone will not make it fit for travel or warrant travellers in using it at the risk of the town. Bliss v. Deerfield, 13 Pick. 102; Drury v. Worcester, 21 Pick. 44.

Something of the same kind exists in regard to public ways in South Boston, with one material difference. When the peninsula of Dorchester Point was annexed to Boston, it was for the avowed purpose of converting the territory into house lots; and at the session of the legislature succeeding that at which the annexation took place, the proprietors were incorporated for the better management of their lands. 3 Mass. Spec. Laws, 607. By the act of annexation, (Stat. 1803, c. 111,) passed March 6th, 1804, this annexation was effected. The third section of this statute provides, that the selectmen of Boston shall be and are authorized to lay out such streets and lanes through the tract, as in their judgment may be for the common benefit of the proprietors and of said town of Boston ; a reasonable attention being paid to the wishes of the proprietors, &c.; provided that no damage or compensation shall be allowed to any proprietor, for such streets and lanes as shall be laid out within twelve months from the passing of this act; and provided, also, that the town of Boston shall not be obliged to complete the streets, laid out by their selectmen pursuant to this act, sooner than they may deem it expedient to do. This section, therefore, provides, first, that streets shall be laid out; second, that no damages be awarded to the owners of lands therefor, if laid out within a year; and third, that the town of Boston shall not be obliged to complete the streets so laid out by their selectmen, pursuant to the act, until they may deem it expedient to do so. The streets at South Boston were laid out by the selectmen, within a year, according to the authority thus conferred on them by the act of annexation, by a vote passed in February, 1805.

Taking these provisions together, it is manifest, that the laying out, although extremely convenient and even necessary to the proprietors, to inform them where the future streets were to be, and to enable them tp adapt their buildings to such streets, was yet but a step towards making the places thus designated and laid out actual highways. Another material act was to be done by the town, that is, by that department of the municipal government charged with this portion of its administration. Formerly, and when the statute was passed, this official act was to be done by the selectmen, and after the city government was established, by the mayor and aldermen. Without this limitation, the act of laying out would have imposed an intolerable burden upon the town, the prospect of which, it may well be supposed, would have deterred the selectmen from laying out streets, in the manner they did, over this entire territory, then almost vacant. This provision vested the entire and unlimited power in the town government to complete ” the streets, that is, to determine the time, at which they should be graded, finished, and fitted for travel, and opened for use. This second act of “ completion ” must concur with the former act of “ laying out,” in order to make the streets actual highways, and charge the municipal government with the risk of their safety.

In the case cited, (Commonwealth v. Boston, 16 Pick. 442,) it was held, that it was competent for that branch of the city government charged with the duty of laying out and maintaining highways, that is, the mayor and aldermen, to complete any one of the streets, or any part or section of either of them, when, in their judgment, the common convenience and necessity should require it, and not before. When, therefore, they pass a vote, which, in terms, or by necessary implication, declares that one of these streets, or a part thereof, shall be made passable, they decide in effect that such street is necessary to the common and public convenience for travel, and such vote must be equivalent to a vote to complete ” the street; and then and ever after it becomes their duty to keep it in good repair, to have it safe and convenient, and open for public travel, and within a reasonable time to fit it for that purpose; and if they fail to do so, such duty may be enforced by a public prosecution. The mayor and aldermen, on the 7th of November, 1831, had passed a vote, on the petition of persons praying that Second street, South Boston, might be opened, and made suitable for public travel, that said street be made passable “ from Turnpike to Dorchester street,” provided that a sum not exceeding five hundred dollars be expended during the then current year. It was held, that this vote was equivalent to a vote that such part of Second street, as it in terms embraced, should be completed ; that it then became, to all intents, a public way, and that the city could not limit their duty and responsibility, by voting to expend no more than a sum fixed and named.

It appears by the report, that the defect, of which the plaintiff complains, was in that part of Second street, as originally laid out, which is east of Dorchester street, and not within the limits mentioned in the vote of the 7th of November, 1831, and thereby ordered to be “ completed” by being made passable. This part of the street was' not, therefore, made a public way, conformably to the provisions of the statute.

It might seem, that some of the votes of the mayor and aldermen, stated in the report, related to Second street, generally, without distinguishing between one section and another, and thus raised the question, whether the whole of Second street had not been accepted and ordered to be completed. But all these votes were passed after the vote directing Second street “ from Turnpike to Dorchester street ” to be made passable. The street designated in the vote of 1805 as Second street was a very long one, and the section which was directed to be made passable embraced that portion only which was then built upon.

And it appears by the evidence, that the distinction between Second street west, and Second street east, was well understood, and that no act was done by which it could be inferred that Second street east had been ordered by the competent authority to be “ completed,” made passable,” or otherwise constituted a public way, which the city were bound to maintain and keep in repair.

Nonsuit confirmed.  