LAWS RELATING TO THE LAYING OUT OF WAYS.
New roads are not often required now to reach and develop new tracts
of land, except in large towns and cities; but they are frequently
needed to shorten distances and to improve grades. Consequently the
laws relative to the laying out, maintenance, and use of highways
are of personal interest to every citizen, and many are also
interested in the laws relating to private ways.
The public have a right to lay out ways for purposes of business,
amusement, or recreation, as to markets, to public parks or commons,
to places of historic interest or beautiful natural scenery.[1] And
such ways may be established by prescription, by dedication, or by
the acts of the proper public authorities. Twenty years'
uninterrupted use by the public will make a prescriptive highway.
Many of the old roads in our towns and cities have become public
thoroughfares by prescriptive use, which began in colonial days, and
perhaps then followed Indian trails, or were first used as
bridle-paths.
[1] 11 Allen, 530.
When the owner in fee of land gives to the public a right of passage
and repassage over it, and his gift is accepted by the public, the
land thus travelled over becomes a way by dedication. The dedication
may be made by the writing, the declaration, or by the acts of the
owner. It must, however, clearly appear that he intended and has
made the dedication; and when it has been accepted by the public it
is irrevocable. Formerly it could be accepted by the public by use,
or by some act or circumstance showing the town's assent and
acquiescence in such dedication; but now no city or town is
chargeable for such dedicated way until it has been laid out and
established in the manner provided by the statutes.[2] It was
formerly thought that this act applied to prescriptive ways as well
as to dedicated ways; but it is now settled that it applies only to
ways by dedication, and ways by prescription are not affected by
it.[3]
[2] Pub. St. c. 49, Sec. 94.
[3] 128 Mass. 63.
The proper town or city authorities have jurisdiction to lay out or
alter ways within the limits of their respective cities or towns,
and to order specific repairs thereon. The county commissioners have
also jurisdiction to lay out public ways, the termini of which are
exclusively within the same town; and they are also clothed with
authority to lay them out from town to town. Hence roads may be
either town ways or public highways. When the proceedings for their
location originate with the town or city officials, they are town
ways; and when the proceedings originate with the county
commissioners, they are public highways.[4] Suppose a new road is
wanted, or an alteration in an old one is desired, within the limits
of a town, a petition therefor may be presented either to the town
authorities or to the county commissioners. If the proposed road is
not situated entirely within the limits of one town or city, then
the commissioners alone have jurisdiction in the premises. When the
selectmen or road commissioners of a town decide to lay out a new
road, or to alter an old one, their doings must be reported and
allowed at some public meeting of the inhabitants regularly warned
and notified therefor; but while the inhabitants are vested with the
right of approval, they have no right to vote that the selectmen or
road commissioners shall lay out a particular way, as it is the
intention of the statute that these officials shall exercise their
own discretion upon the subject.[5] If the town authorities
unreasonably refuse or neglect to lay out a way, or if the town
unreasonably refuses or delays to approve and allow such way as laid
out or altered by its officials, then the parties aggrieved thereby
may, at any time within one year, apply to the county commissioners,
who have authority to cause such way to be laid out or altered. But
when a petition for a public way is presented in the first instance
to the county commissioners, or when the matter is brought before
them by way of appeal, their decision on the question of the public
necessity and convenience of such way is final, and from it there is
no appeal. If damage is sustained by any person in his property by
the laying out, alteration, or discontinuance of a public way, he is
entitled to receive just and adequate damages therefor, to be
assessed, in the first place, by the town or city authorities or by
the county commissioners, and, finally, by a jury, in case one is
demanded by him. He is entitled to a reasonable time to take off any
timber, wood or trees, which may be upon the land to be taken; but
if he does not remove the same within the time allowed, he is deemed
to have relinquished his right thereto. In estimating the damage to
the land-owner caused by the laying out or the alteration of a
public way over his land, neither the city nor town authorities nor
a jury are confined to the value of the land taken. He is also
entitled to the amount of the damage done to his remaining land by
such laying out or alteration.[6] But in such estimation of damages
any direct or peculiar benefit or increase of value accruing to his
adjoining land is to be allowed as a betterment, by way of set-off;
but not any general benefit or increase of value received by him in
common with other land in the neighborhood.[7]
[4] 7 Cush. 394.
[5] 5 Pick. 492.
[6] 14 Gray, 214.
[7] 4 Cush. 291.
The cost of making and altering ways, including damages caused
thereby, is to be paid by the city or town wherein the same are
located, provided the proceedings originate with the town or city
authorities; but when the proceedings originate with the county
commissioners, they divide the cost between the towns and the county
in such manner as they think to be just and reasonable.[8]
[8] 6 Met. 329.