
    Montague Paper Company vs. Nelson Burrows & others.
    Franklin.
    Sept. 19. —
    Oct. 21, 1876.
    Colt & Morton, JJ., absent.
    The provision of the St. of 1875, c. 193, § 1, authorizing the construction oí a highway and bridge across the Connecticut River at Turner’s Ralls, that “ the expense of the same shall not exceed the sum of forty-two thousand dollars,” includes th® damages occasioned to the owners of lands by such construction.'
    Bill in equity, against the commissioners authorized by the St. of 1875, o. 193, to construct a highway and bridge across the Connecticut River at Turner’s Falls, to restrain them from taking land of the plaintiff for that purpose, and alleging, among other things, that the cost of the highway and bridge with suitable approaches thereto, including land damages, would exceed the limit imposed upon the defendants by the statute. The answer admitted that the sum, to which the defendants were limited by the statute, would be insufficient to pay the expenses of the highway and bridge, including the damage to private property, necessary for the same. The case was reserved on the bill and answer by Colt, J., for the consideration of the full court.
    
      0. Allen, for the plaintiff, was stopped by the court.
    
      8. 0. Lamb C. C. Conant, for the defendants.
   Ames, J.

The defendants are authorized and required by the St. of 1875, e. 193, § 1, to proceed to lay out and construct, or cause to be constructed, a substantial, convenient and safe highway and bridge, with suitable approaches thereto, across the Connecticut River, at Turner’s Falls, provided the expense of the same shall not exceed the sum of forty-two thousand dollars. In the next section of the act they are authorized to take and appropriate, for the purposes of said highway and bridge, the private property of any persons or corporations, whose damages for such taking are to be assessed according to the rules applicable in the case of highways. In the third section, it is provided that “ the expense of the construction of the aforesaid highway, bridge and approaches,” shall be paid in the first instance by the county of Franklin, and authority is given to the treasurer of that county to borrow money to an amount not exceeding the above named cum.

The plain meaning of these provisions is that the entire expense of the intended highway, bridge and suitable approaches is in no event to exceed the sum of forty-two thousand dollars. The expense incurred by the appropriation of private property to the purposes of the act is a part of the cost of the improvement. Damon v. Reading, 2 Gray, 274. As it is admitted in the answer that the entire cost of the improvement, including land damages, will exceed the limit prescribed by the statute, the defendants cannot proceed with the work without violating the terms of the authority under which they assume to act.

Decree for the plaintiff.  