
    Selden Crocket vs. The City of Boston.
    The board of aldermen of the city of Boston having referred it to a committee to consider of a plan for widening B. street, and the committee having agreed upon a report of a plan for that purpose, an offer was made to the board, by one of the proprietors of land abutting on B. street, that if the city would establish a pro spective line for widening said street, according to the report of fhe committee, and would take from a certain estate, and the proprietors of certain other estates would give, sufficient land from said estates, respectively, for the purpose, such proprietor would give free of charge the necessary amount of land which might be required for the purpose from his estate: It was held, that if such offer was accepted in a reasonable time, and the condition complied with, the contract thereby formed was not invalid by reason of its supposed interference with the duty of the mayor and aldermen, in deciding upon the public necessity and convenience of the alteration proposed; but would estop such proprietor from claiming damages for his land, if taken therefor, and for the obstruction of his adjoining land, during the laying out of the street; that it was not necessary the mayor and aldermen should accept the proposal in direct terms or by a formal vote; but that it was sufficient, if they took seasonable measures to secure the actual fulfilment of the conditions of the offer, by making the necessary orders for carrying the proposed widening into effect, and by actually accomplishing the same; and that a year and four months was not an unreasonable time for this purpose.
    This was a proceeding under the Rev. Sts. c. 24, § 55, which provides, that when any party shall be aggrieved by the doings of the mayor and aldermen of the city of Boston, in the laying out, altering or discontinuing of any way therein, or in the assessing of damages therefor, he may apply by petition to the court of common pleas for the county of Suffolk, who shall order a trial by jury to be had in the case, in the same manner in which other civil causes are there tried.
    The petitioner, in the present case, represented, that on the 17th of May, 1847, he was seized in fee-simple, in his own right, of an estate in the city of Boston, on the easterly side of Bromfield street, known as the Bromfield house; that, on the same day, the mayor and aldermen of the city took and laid out from the said estate three hundred and sixty square feet of land, of the value of two thousand dollars, as and fur a public street or way, for which they had refused to make the petitioner any compensation; that, thereafter, between the said 17t,h of May, and the 1st of November ensuing, the said mayor and aldermen, by their servants, entered into ami upon the .and so taken, for the purpose of building the street, and thereby did great damage to the business of the petitioner as an innholder ; and that during the said time, and by the means aforesaid, he had been prevented from any valuable enjoyment of his estate, next adjoining the said three hundred and sixty feet of land.
    The respondents pleaded the general issue, and filed as special matter of defence a letter (to be stated at length hereafter,) addressed by the petitioner to the chairman of the committee of the board of aldermen on streets, proposing to give his land to the city, for the purpose of widening Bromfield street.
    Issue having been joined by the petitioner, the respondents filed an admission of the several allegations in the petition, and averred in answer thereto, that the petitioner was estopped from claiming damages for his land, by reason of his promise and agreement above referred to, to give the same for widening the street, and that the petitioner, instead of having suffered any damages in the premises, had on the contrary received a benefit therefrom.
    The respondents were thereupon allowed, under the forty-first rule of the court of common pleas, to open and close the case to the jury, and proceeded to introduce testimony to prove the allegations on their behalf.
    It appeared from the evidence thus produced, that, in consequence of some suggestions proceeding from the proprietors of estates on Bromfield street, the board of aldermen passed an order on the 20th of April, 1846, directing the committee on laying out and widening streets to report a line on Bromfield street, for the purpose of widening the same, not exceeding thirty-nine feet.
    The committee, on the 27th of April, 1846, reported, that having given due consideration to the subject, and viewing the importance of the street in question, in its present and prospective states, and having considered the value of the estates which must necessarily be taken in part for the purpose, they were of opinion, that if the same should be made of the uniform width of thirty-five feet, the public necessity safety, and convenience would be promoted; that, in coming to this opinion, they had been governed by circumstances, among which were the voluntary contributions, by individual proprietors, of their lands, for the purpose, and the enhanced value of estates in that neighborhood from the proposed alteration: which circumstances rendered it expedient, if the measure should be adopted by the board, that it should be put in execution without further delay. The committee, therefore, pursuant to the order of the board, submitted a plan, with a line as directed, for their consideration; and, in view of the benefit which the proprietors of estates on Bromfield street were to derive from the action of the city, they recommended that a prospective line should be established for the widening, to be earned out as soon as might be expedient thereafter, of the entire length of the street; and that within a period of sixteen months, the plan proposed should be carried into execution in that portion of the street, between Washington and Province streets, and the obstructions therein caused to be removed, upon such terms and conditions as would relieve the city from too great an expenditure. For this purpose, the committee submitted, for the consideration of the board, the following preamble and order, which were adopted accordingly, on the 27th of April, 1846: —
    “ Whereas the safety and convenience of the inhabitants- require that Bromfield street should be so far laid out and widened, as to make the same thirty-five feet wide, said widening is hereby ordered, and the line of said street is hereby established, according to a plan submitted and appended to this order; and whereas it becomes necessary and the safety and convenience of the inhabitants require, that within sixteen months from the present month, the said widening should be carried out, and the obstructions thereto be removed from that part of said street from Washington street at the north comer thereof to Province street, and the residue of said street at such time as may hereafter be determined by this board:
    “ It is hereby ordered, That upon the condition that the proprietors of estates on both sides said Bromfield street, between Province [street] and the estate on the north comer of Washington and Bromfield streets shall release to the city so much of their estates as may be necessary to widen said street making the same thirty-five feet wide, according to the plan appended hereto, and shall remove the buildings thereon, this board will cause the said widening and extending to be carried out to Washington street, and will cause all buildings at the north corner of said Washington street, and Bromfield street, to be so far removed as may be necessary to effect said widening to the extent of thirty-five feet on or before the first of August, eighteen hundred and forty-seven.”
    On the same day, April 27th, 1846, the petitioner addressed a letter, of which the following is a copy, to the “ chai» man of the committee on streets: ” — ,
    “ Sir, If the city will establish a prospective line for the widening of Bromfield street, according to the report of the committee on streets, and will take from Mr Bigelow’s estate sufficient land for that purpose, John Ballard and Joseph Ballard giving the required quantity of land from their estates for the same purpose, I hereby agree to give free of charge (for a street) the necessary amount of land, which may be required for the purpose, from my estate in said street, reserving for my use that part upon which the main building of Bromfield house stands, unless the building upon said part shall be removed by accident or other cause, and do agree to have the circular building now the front of the hairdresser’s shop removed on a line with the main building by the first day of ^August, one thousand eight hundred and forty-seven; provided the city obligate themselves to have all the buildings upon said Bigelow estate removed according to the above report, by the first of August, eighteen hundred and forty-seven.”
    It appeared, further, that Joseph Ballard and John Ballard, by their several deeds bearing date, respectively, the 4th of June, 1846, and the 15th of May, 1847, released to the city of Boston so much of their estates on Bromfield street, as might be taken for widening the same.
    On the 17th of May, 1847, the board of aldermen, by vote, resolved, that the safety and convenience of the city required that Bromfield street should be widened, and that it was necessary for that purpose to take and lay out as a public street or way the several parcels of land (describing the same) belonging to certain proprietors named, among whom were Alpheus Bigelow, referred to in the petitioner’s letter above mentioned, John Ballard, Joseph Ballard, and the petitioner; and due notice having been given of the intention of the board to take the land described for the purpose of widening the said street; the board thereupon ordered, “ that the parcel of land before described be and the same hereby is taken and laid out as a public street or way.”
    On the 34th of May, 1847, an order was passed in the board of aldermen, directing due notice to be given to the several persons named in the preceding order, being the proprietors, &e., of the estates and buildings projecting over the line of Bromfield street, and all other persons in any manner interested therein, to cause the buildings and other obstructions existing within and over the line of Bromfield street, as established by the order of the 17th of May, to be removed on or before the 1st of August, 1847, and that in default of such removal by the proprietors, the city marshal would remove the same, under the direction of the committee on laying out and widening streets.
    On the 31st of May, 1847, the committee on laying out and widening streets were directed by a vote of the board of aider-men to carry out the widening of Bromfield street throughout said street, as made prospective by an order of the board passed on the 17th instant.
    The respondents having called and examined Joseph Ballard, as a witness, he testified on his cross-examination, that he went to the petitioner many times and showed him a plan of the street as it was to be when widened; that on the lower corner of the petitioner’s main building towards Washington street, it was supposed by them, that the line of buildings belonging to John Ballard was to be even with the lower corner of the petitioner’s building, but that in fact the said line projected beyond the petitioner’s building seventeen and one half inches; that the petitioner never said his offer to give his land was made under a misapprehension; that it was not an essential part of the petitioner’s agreement, to give his land, that the lower corner of his building should be even with the buildings of John Ballard; that it was understood from the beginning that the petitioner was to give his land; that the petitioner attended with the witness at several meetings of the board of aldermen, when the subject was under discussion before them, and when the witness stated to the board, that the petitioner would give his land; and that the petitioner acted in connection with the witness throughout the whole matter .on the plan above mentioned.
    The respondents contended, that the petitioner was estopped to claim any damages for the taking of his land, by reason of his having agreed to give the same to the city for the purpose of having Bromfield street widened.
    The petitioner contended: —
    1. That his letter to the chairman of the committee on laying out and widening streets was a mere proposal to give and without consideration.
    
      2. That if the street was laid out and widened, in consideration of the petitioner’s offer to give his land, the laying out was illegal, and the petitioner was not bound thereby.
    3. That the pleadings, and the record of the 17th of May, 1847, admit that the respondents acted upon the public necessity, and they are now estopped to say, that they acted upon the letter of the petitioner.
    4. That the proposal of the petitioner was not accepted by the mayor and aldermen; and no stipulation was entered into, as required by the letter, to remove the Bigelow estate.
    5. That the line adopted was not the same as that referred to in the petitioner’s letter.
    The presiding judge (Bigelow, J.) ruled, upon the foregoing evidence, that the petitioner was estopped from claiming damages for the taking of his land, as set forth in this petition ; whereupon the jury returned a verdict for the respondents, and the petitioner alleged exceptions.
    
      C. B. Goodrich, for the petitioner.
    P. W. Chandler, city solicitor, for the respondents.
   Dewey, J.

The land of the petitioner having been appropriated to a public use, by an order of the mayor and aider-men directing the widening of Bromffeld street, he is primd facie entitled to compensation. The respondents assumed the burden of showing a valid discharge from such liability ; and, to maintain the issue on their part, set up a certain written communication from the petitioner to the chairman of the committee on streets. This communication was made by a letter of the 27th of April, 1846, and contained a proposal by the petitioner to give, free of charge, so much of his land as might be required to carry into effect the proposed widening of Bromfield street, upon certain conditions stated in the letter; which conditions, the respondents insist, have been performed.

1. To this ground of defence, the petitioner replies, that the communication made by him was a mere proposal, and not a contract. Taking the written communication of the petitioner, as disconnected with the subsequent proceedings on the part of the mayor and aldermen, it would be merely a naked proposal. The same is true of a very large proportion of binding agreements. One party must propose ; the proposal does not bind the other party until accepted; and it may be retracted before it is accepted or acted upon; but when accepted by the party to whom it is made, a contract obligatory on both is formed. This principle and the leading cases bearing upon it are fully stated in Chitty on Contracts, 10. A case very analogous has been decided in this court. Seymour v. Carter, 2 Met. 520. We have no doubt as to the effect of this proposition by the petitioner, in discharging the city of Boston from all liability for damages for taking the land of the petitioner; provided the conditions were complied with, and the offer was accepted in a reasonable time by the mayor and aldermen; and the contract shall not be found to be invalid, by reason of its supposed interference with the proper duty of the mayor and aldermen, in deciding the question of public necessity and convenience.

2. It is said, that the mayor and aldermen did not act seasonably upon the proposition submitted to them by the petitioner, and therefore that he is not bound by it. In reference to this question, it is proper to bear in mind the nature of the matter to be acted upon, the party to whom the proposal was made, the usual course of proceeding in laying out and widening streets, and the delay naturally incident to such subjects. The letter of the petitioner, containing the proposal, was dated April 27th, 1846. Proceedings were then pending before the mayor and aldermen, and were continued until the 17th of May, 1847, before the final order was passed. The proposition of the petitioner required action not only by the mayor and aldermen, but by various other individuals. It necessarily contemplated some lapse of time before the passing of the order; and it was only necessary, that the whole object of widening the streets as proposed should be accomplished before the 1st of August, 1847.

3. It was objected, further, that the city of Boston did not become obligated to perform the conditions on their part, as the terms of the proposal required. It is true, that no bond or other written obligation was given to the petitioner by the respondents, but such could tut have been the expectation of the petitioner. It was enough, that the mayor and aldermen took seasonable measures to secure the actual fulfilment of all the conditions of the proposal, within the period limited by it. They bound themselves by making all necessary and proper orders to carry into effect the proposed widening of the street, and actually accomplished the same. It was not necessary, that the mayor and aldermen should accept the proposal in direct terms, or should directly recite in the order for widening the street, that the moving consideration and foundation of the order was the proposal by the petitioner, to give his land for the same free of all charge to the city of Boston. If it had so appeared upon the face of the record, it would have opened more fully to the petitioner the further ground of objection, to giving effect to his proposal to give his land free of charge; which embraces his next point.

4. It is said, that the stipulation on the part of the petitioner, to give his land without compensation therefor, if made for the purpose of being used before the mayor and aldermen, upon the hearing by them on the question, whether the public necessity and convenience required Bromfield street to be widened, was illegal; as it operated to procure a decision upon grounds not legally open, or proper to have any influence on the question of taking the land of the petitioner and others for a public street; and having been thus illegally used for this purpose, that the proceedings of the mayor and aldermen, in their order for widening Bromfield street, are illegal and void. How such a result, if it could be legally deduced from these facts, would aid the cause of the petitioner, it is difficult to perceive ; as the foundation of his application for damages rests upon the fact, that a legal' order for widening Bromfield street was passed by the mayor and aldermen, and that in pursuance of such order the land of the petitioner has been taken for public use.

If this order is illegal, the petition cannot be supported, inasmuch as the petitioner has not been legally divested of any interest in his land, and may by an action at law restore himself to all his rights thereto. But, leaving this view of the matter, the court are of opinion, that if this ground of objection to the order was open to the petitioner, yet the objection itself cannot be sustained. The ground taken is, that if a bond' of indemnity against the expense of widening a street, or a written promise to relieve the city of Boston in part from the payment of compensation for land taken, is submitted to the znayor azid aldermen, while they have under consideration the questiozi of the public convenience and necessity of laying out or widening a street or way, and such offer of indemnity as to a part or the whole of the expense is taken into consideration, in deciding the question of opening or widening a street, the whole proceeding is thereby vitiated.

This doctrine is supposed to be countenanced by the case of Commonwealth v. Cambridge, 7 Mass. 158, 167. But the question did not properly arise in that case, and the court, in giving their opinion, say, that this objection had no influence upon the decision and final disposition of that case, inasmuch as the objection did not appear upon the record. In the remarks made upon that point, the prominent objection urged against such a bond of indemnity, in reference to the expense of laying out or making a way, was, that by this means the owners of lands might be made to submit to the inconveziience of having their lands taken for public use, really at the motion and for the benefit of individuals, but in the name of the public and under the guise of public convenience and necessity. The evil apprehended in that case does not apply to a case like the present. Indeed, the opinion expressly excepts the case “ where the owner of the land waives all right to damages because the way is beneficial to him.”

The next case cited, that of Commonwealth v. Sawin, 2 Pick. 547, presented the peculiar case of an adjudication, in which it appeared by the record, that the public convenience and necessity did not warrant the laying out of the road at the expense of the towzi, but that Moses Sawin, who would be peculiarly benefited by the establishment of it, had filed a bond to the town, if they would accept the same, to make a certaizi portion of the road, and the court therefore adjudged the road to be required for the public convenience and necessity, and that the same should be laid out and made. But the more recent cases have entirely settled the law upon this point.

In the case of Parks v. Boston, 8 Pick. 218, it was held, that . the taking of such a bond from an individual will not vitiate the proceedings, provided the bond is not made the basis of the adjudication, and the laying out of the way is not color-ably for the use of the public, but really for the benefit of the person giving the bond. The case of Freetown v. Bristol, 9 Pick. 46, is of the like import. The case of Copeland v. Packard, 16 Pick. 217, was an application of the principle of the two preceding cases to a town way.

In the present case, the objection is untenable. None of the evils, to be apprehended from the giving of such bond of indemnity by persons not land-owners on the proposed street, attach to a release of damages by the landowners ; and on the other hand, it would seem quite proper, that the amount to be paid for land damages should be a subject of consideration with the mayor and aldermen, before passing an order for laying out or widening a street.

5. It is objected, that the lines of the street laid out do not correspond with those described in the proposal of the petitioner, and that this matter was a proper subject of inquiry by the jury. We perceive no ground for this objection, or any reason to suppose that such discrepancy exists. But we think that this point is not properly open here; the petitioner not having asked in the court of common pleas, that this question, which was peculiarly one of fact, should be there passed upon by the jury. We do not understand, that the presiding judge intended, by any rulings there, to preclude the petitioner from presenting any evidence he might have upon that point to the jury, but that the rulings were upon matter of law upon the case there presented.

6. It was also contended, at the argument of the case, that the petitioner was entitled to damages for the injury to his adjoining land, from obstructions necessarily occurring during the time in which the street was being fitted for use by the public. This would have been a proper ground of claim for damages, had the case been one where there had been no re linquishment of damages by the petitioner. But we think that the proposal made by him must be taken to embrace this cause of damage. The widening of the street was a proceeding which he desired. To effect it, he proposed to relinquish his land, and he has thereby released all claim for these incidental damages to the adjacent land owned by him.

Petition dismissed.  