
    Samuel H. Folsom vs. County Commissioners of Middlesex.
    Middlesex.
    January 12, 13, 1899.
    March 2, 1899.
    Present: Field, C. J., Holmes, Knowlton, Morton, & Lathrop, JJ.
    
      Laying out Way—Petition — Order of County Commissioners — Statute — Effect of Action on Former Petition.
    
    Under a petition for the laying out of a new way, running southerly from a certain street, and in extension of an old way, and containing no prayer for the alteration of the old way, county commissioners may lay out southerly from the street mentioned a new way, which includes a portion of the old way taken lengthwise.
    The fact that county commissioners, while a petition for the laying out of a new way was pending before them, acted upon a similar but less extensive petition, and ordered the way therein prayed for, but there was a failure to do anything towards the construction of the way within the two years mentioned in Pub. Sts. c. 49, § 88, does not prevent the commissioners after that period from proceeding under the pending petition.
    Petition for a writ of certiorari, to quash the proceedings of the respondents in laying out a town way in Winchester. Hearing before Knowlton, J., who, at the request of the petitioner, reported the case for the consideration of the full court. The facts appear in the opinion.
    
      G. L. Mayberry, (T. F. Carey with him,) for the petitioner.
    
      J. T. Wilson & A. S. Hall, for the respondents.
   Holmes, J.

This is a petition for certiorari to quash proceedings by the respondents in laying out a town way in Winchester. The first objection is that the petition upon which the respondents acted was a petition for the laying out of a new way, and that under such a petition they could not lay out a way which should include a portion of an old way taken lengthwise ; that that could be done only under a prayer for an alteration. The facts are that the way laid out starts from what was called Highland Avenue at Mt. Vernon Street, and extends southerly for five thousand two hundred and sixty-three feet; that substantially it is a new way, but that for six hundred and sixty-three feet from Mt. Vernon Street it does completely include an old way about thirty-five feet wide. The new way is sixty feet wide. The petition for the way was for a way running southerly from Mt. Vernon Street, and in extension of Highland Avenue, and thus manifestly contemplated taking this old way as was done, unless it shall be held that, because what is wanted is described as the laying out of a new way, the scope of the prayer and the jurisdiction of the respondents were diminished. But it. would be unreasonable to attach so much importance to nomenclature. What was wanted.was plain, and the procedure was the same, whatever the thing was called. Commonwealth v. County Commissioners, 8 Pick. 343, 345. Bliss v. Deerfield, 13 Pick. 102, 106, 107. Indeed, it seems to us that the form adopted was strictly proper, and that when the alteration of an old way is merely incident to what in substance is the laying out of a new one, it would be a superfluous nicety to require different prayers for different parts of the way. Assuming that they acted within the scope of the petition, we see no reason to doubt the power of the county commissioners. That they could have widened the old way, or located it anew, is plain. It seems to us that their action was equally effectual when it took the form of establishing and ordering the construction of a new way within the new boundaries. The attempt to locate a highway over a turnpike by virtue of general powers presented a different question. In such a case the right to take toll conferred by the charter of the turnpike corporation might be infringed. West Boston Bridge v. County Commissioners, 10 Pick. 270, 272. Commonwealth v. West Boston Bridge, 13 Pick. 195, 196. See Easthampton v. County Commissioners, 154 Mass. 424.

Another objection is that, while the petition upon which the respondents now have acted was pending, another similar but much less extensive petition was acted upon by them, and the way prayed for was ordered. It is urged that this order exhausted the power of the respondents, that for two years they could not have passed the order now before us, and that, although there has been a failure for two years to do anything toward the construction of the way, still, by Pub. Sts. c. 49, § 88, the laying out is made void only as against the owners of land over which the way is located, and that they are at liberty to elect in favor of the old proceedings. Pickford v. Lynn, 98 Mass. 491, 499. We have some difficulty with the first assump« tian, as we have stated, which supposes that the second order could not have been passed within two years. But, however that may be, we think that it would be giving too refined a construction to the section of the Public Statutes last cited to hold that it did not so far avoid the old proceedings as to leave the county commissioners at liberty to proceed again. If so, they might as well proceed upon the old petition as upon a new one. The former order was not an adjudication upon it in a technical sense, even if it stopped further action under it while the former order was in force.

Without going over the argument for the petitioner in more detail, we are of opinion that the writ should not be granted.

Petition dismissed.  