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Commissioners, &c., to mark termini and angles of ways. Penalty for neglect. 1848, 192. 1855, 95. 7 Gray, 465.

Ways not to be
laid out over
burying-
grounds, un-
less, &c.
R. S. 24, § 59.

Same subject.
R. S. 24, § 60.

ERECTION OF MONUMENTS.

SECT. 88. The county commissioners, mayor and aldermen, and selectmen, shall cause permanent stone bounds not less than three feet long, two feet of which at least shall be inserted in the earth, to be erected at the termini and angles of all roads laid out by them, when practicable; and when not so, a heap of stones, a living tree, a permanent rock, or the corner of an edifice, may be a substitute for such stones; or said bounds may be permanent stone bounds not less than three feet long, with holes drilled therein, and filled with lead, placed a few inches below the travelled part of the street or way, as the officer whose duty it is to cause the same [to be] erected may determine. And if they neglect to establish such monuments after being notified so to do by an owner of land through which any such way is laid out, (since the twenty-fifth of April, eighteen hundred and forty-eight,) the county if it be a county road, and the city or town if it be a city or town road, shall pay to the owner of the land the sum of fifty dollars for each month that such neglect continues, to be recovered in an action of tort.

WAYS OVER BURYING-GROUNDS.

SECT. 89. No highway or town way shall be laid out or constructed in, upon, or through, an enclosure used or appropriated for the burial of the dead, unless authority to that effect is specially granted by law, or the consent of the inhabitants of the town where such enclosure is situated is first obtained.

SECT. 90. No highway or town way shall be laid out or constructed in, upon, or through, such part of an enclosure belonging to private proprietors, as may be used or appropriated to the burial of the dead, unless the consent of such proprietors is first obtained therefor.

CHAPTER 44.

OF THE REPAIRS OF WAYS AND BRIDGES.

PUBLIC WAYS AND BRIDGES.

SECTION

1. Ways and bridges to be repaired at expense
of town.

2. When several towns to repair bridge, com-
missioners may make orders. How en-
forced.

3. Towns to vote sums to be paid in labor and
materials.

4. Highway tax may be raised in money.
5. Non-residents, how assessed.

6. Selectmen to assign surveyors' limits.

7. Surveyor to give notice. Party taxed may
work, &c.

8. Surveyor may remove obstructions.

9. Fence, &c., to prevent spreading of disease,
not to be removed.

10. Surveyors not to turn water-courses so as
to incommode, &c.

11. Surveyors may contract for repairing ways.
12.
may be authorized to collect taxes in
money.

13. Surveyor's power when sum voted is defi-
cient, or not paid.

14. If towns neglect to raise money, surveyor
with consent of selectmen may repair at
town's expense.

15. Unless town shall otherwise determine,

SECTION

two-thirds the tax to be expended before July first. Manner in which tax shall be expended in succeeding year.

16. Penalty for not accounting.

17. Tax of delinquents to be collected in money. 18. Surveyor to pay over surplus money. Penalty.

19. Towns to pay damages occasioned by repairs.

20. Petitioner aggrieved may apply for jury or agree with adverse party, &c.

21. Fine to use of executor, &c., for defect in way causing loss of life.

22. Damages for injury by defect of ways recovered of town, &c., if notice, &c. Excep tion.

23. Party liable may tender, &c.

24. Penalty on towns for neglect, &c.

25. Fines imposed, appropriated for repairs, except, &c.

26. Location not to be denied on trial, if repairs made within six years.

PRIVATE WAYS AND BRIDGES.

27. Four or more proprietors may call meeting. 28. General powers and duties of proprietors and surveyor

SECTION

SECTION

with votes.

29. Penalty on proprietor neglecting to comply 32. Proprietors may contract for repairs, and
raise money for such contracts.
33. Surveyors may collect taxes.
34. Penalty on surveyor for neglect.
35 Chapter to apply to cities, except, &c.

30. Penalty for refusing to serve as survey

31. Forfeitures, how applied.

or.

PUBLIC WAYS AND BRIDGES.

at ex

SECTION 1. Highways, town ways, streets, causeways, and bridges, Ways and shall be kept in repair at the expense of the town, city, or place, in which bridges to be they are situated, when other provision is not made therefor, so that the pense of town. same may be safe and convenient for travellers with their horses, teams, 13 Gray, 61. and carriages, at all seasons of the year.

R. S.

may make or

ders.

1852, 238, §§ 1,

2, 3.

SECT. 2. When two or more towns are required by law to maintain Where several or keep in repair a bridge upon a highway or town way, and differ as to towns are to repair bridge, the mode or time of doing the same, the county commissioners having commissioners jurisdiction to lay out highways in either of such towns to whom application is first made by one of the towns, may, after a hearing upon due notice to all parties interested, pass such orders concerning the maintenance and repair of such bridge as in their opinion the public good may require. Such orders shall be final, and shall be enforced in the same manner as other orders by the commissioners are by law enforced. SECT. 3. Towns shall vote such sums to be paid in labor and materials on the highways and town ways, as are necessary; and the assessors shall assess the same on the polls and estates, real and personal, of the inhabitants, residents and non-residents, of their town, as other town charges are by law assessed; and shall deliver to each surveyor a list of the persons within his limits, and the sums at which they are severally assessed.

Towns to vote terials.

sums to be paid in labor and maR. S. 25, § 8.

in money.

SECT. 4. Towns may vote to raise such sums of money as are neces- Highway tax sary for making and repairing highways and town ways; and order that may be raised the same be assessed upon the polls and estates of the inhabitants, resi- R. S. 25, § 9. dents and non-residents, as other town charges are assessed; and the same shall be collected as other town taxes are collected.

how assessed

SECT. 5. The lands of non-resident proprietors shall be taxed for the Non-residents, making and repairing of highways in the same manner as for other town R. S. 25, § 20. taxes; and upon default of payment, the same proceedings shall be had as are provided for the collection of other town taxes of such persons.

limits.

SECT. 6. The selectmen of every town having more than one sur- Selectmen to asveyor of highways, shall annually in writing before the first day of May, sign surveyors' assign to each surveyor the limits and divisions of the highways and R. S. 25, § 7. town ways to be kept in repair by him.

4 Pick. 149.

taxed

R. S. 25, § 11.

SECT. 7. The surveyor shall give reasonable notice, as directed by Surveyor to the town to each person in his list, of the sum he is assessed to the give notice. highways and town ways; and to the inhabitants within the limits of may work, &c. his district, assessed as aforesaid, seven days' notice of the times and 1838, 30. places he shall appoint, extraordinary casualties excepted, for providing See § 17. materials and working on the highways and town ways; and each inhabitant shall have an opportunity to work thereon, in person or by his substitute, or with his oxen, horses, cart and plough, at the prices which the town shall affix to such labor, to the full amount of the sum at which he is assessed; but if any person so assessed pays to the surveyor in money the sum assessed to him, the surveyor shall according to his best judgment carefully expend the sum so paid in repairing said

ways.

tions.

SECT. 8. Surveyors of highways, except as is provided in the follow- Surveyor may ing section, and in sections six and nine of chapter forty-six, may cut remove obstruodown or lop off trees and bushes, and dig up and remove whatever ob- R. S. 25, § 3. structs or encumbers a highway or town way, or hinders, incommodes,

13 Pick. 343.

or endangers, persons travelling thereon; and when such way is encumbered with snow they shall forthwith cause the same to be removed, or so trodden down as to make the way safe and convenient.

Fence, &c., to

of not to be reinoved. R. S. 25, §4. Surveyors not to turn watercourses so as to

SECT. 9. No surveyor or other person shall remove or take down prevent spread- fences, gates, or bars, placed on a highway or town way for the purpose of preventing the spreading of a disease which may be dangerous to the public health.

SECT. 10. No surveyor of highways shall, without the approbation of the selectmen first had in writing, cause a water-course occasioned incommode, &c. by the wash of a highway or town way to be so conveyed by the side

R. S. 25, § 5. 2 Met. 599.

of such way as to incommode any house, store, shop, or other building, or to obstruct any person in the prosecution of his business. Persons aggrieved by a violation of this section may complain to the selectmen or mayor and aldermen, who shall thereupon view the watercourse, and may direct the surveyor to alter the same in such manner as they shall determine.

Surveyors may contract for repairing ways. R. S. 25, § 15.

may collect

taxes, &c.
R. S. 25, § 16.

power when sum voted is deficient or not

paid.
R. S. 25, § 13.
9 Met. 522.

SECT. 13. When there is a deficiency either of labor or money in the amount appropriated for the repair of highways or town ways within the limits of any surveyor, or when said amount is not furnished or paid to him, so that he is unable to make such repairs, he may to an amount not exceeding ten dollars employ persons to make such repairs; and the persons so employed shall be paid therefor by the town.

If towns neglect

SECT. 14. If a town neglects to vote a sufficient sum of money for tore money, the purpose of repairing the highways and town ways, or does not

surveyor, &c., may repair at

town's ex

otherwise effectually provide therefor, each of its surveyors, first having obtained the consent of the selectmen for that purpose in writing, may employ persons to repair the highways and town ways in their respective districts, so that the same shall be safe and convenient for travellers at all seasons of the year, and the persons so employed shall be paid therefor by the town.

SECT. 15. Two-thirds at least of the sums of money granted by each town for repairing highways and town ways, shall be laid out and expended for that purpose before the first day of July next after the same are granted, or at such other time or times as the town at a legal meeting called for that purpose shall determine. If any part of the money raised is to be expended in labor and materials in the month of March or April of the succeeding year, and after the surveyors of highways for such year are chosen and qualified, it shall be expended by the surveyors to whom the tax was committed, under the direction of the surveyors of the succeeding year having charge of the repairs of the highways and town ways in the district in which the same is to be thus expended.

pense.

R. S. 25, § 14. 13 Pick. 343.

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Two-thirds the tax to be expended before

July unless, &c.

How taxes shall be ex

pended in suc

ceeding year.
R. S. 25, § 10.
1839, 144.
1847, 254.

Penalty for not
accounting.
R. S. 25, § 19.

SECT. 11. Towns may authorize their surveyors or any other person to enter into contracts for making or repairing the highways or town ways within the same.

SECT. 12. They may empower their surveyors to collect all such taxes as are not paid in labor or otherwise within the time limited by law, or at such periods as may be agreed upon by the town; and for that purpose the assessors shall deliver to them warrants of distress, in substance like the warrants prescribed by law for collecting other town taxes; or they may deliver a warrant for collecting the deficiency in any highway tax to the collector, who shall then proceed to collect the same in like manner as other taxes are by law to be collected, and shall pay over the same to the respective surveyors, who shall account with the selectmen for the expenditure thereof.

SECT. 16. Every surveyor shall exhibit his tax bill to the selectmen on the first Monday of July annually, and also at the expiration of the term for which he is appointed; and at those times shall render an account of all moneys expended by him on the highways and town

ways. For each neglect he shall forfeit a sum not exceeding fifty

dollars.

SECT. 17. At the expiration of his term the surveyor shall render to Tax of delinthe assessors a list of such persons as have neglected or refused to work quents to be collected in money. out or otherwise pay their highway tax, when required by him as pro- R. S. 25, § 12. vided in section seven; and such deficient sums shall be collected and paid into the treasury like other town taxes.

SECT. 18. If any money remains unexpended in the hands of a sur- Surveyor to pay veyor at the expiration of his office, he shall pay the same to the town over surplus. treasurer; who, after demand, may recover the same in an action of R. S. 25, §§ 17, contract for money had and received, with twenty per cent. in addition thereto, to the use of the town.

18.

damages occa

67.

2 Met. 599.

SECT. 19. When an owner of land adjoining a highway or town Towns to pay way sustains damage in his property by reason of any raising, lowering, sioned by re or other act, done for the purpose of repairing such way, he shall have pairs. compensation therefor, to be determined by the selectmen or mayor and 15, 25, § 6. aldermen; with whom he shall file his petition therefor after the com- 1 Pick. 418. mencement, and within one year from the completion of the work; 8 Met. 179. and who shall finally adjudicate upon the question of damages within 10 Cush. 411. thirty days after the filing of the petition therefor, unless the parties 5 Gray, 372. agree in writing to extend the time. The benefit, if any, which the complainant may receive by reason of such alteration or repair, shall be allowed by way of set off.

SECT. 20. If the petitioner is aggrieved, either by the estimate of Petitioner aghis damages or by a refusal or neglect to estimate the same, he may, apply for jury, within one year from the expiration of said thirty days, apply for a jury, or, &c. and have his damages ascertained in the manner provided where land 1859, 67. is taken in laying out highways. Or he may, by agreement with the adverse party and upon application made within the same time, have them ascertained by a committee to be appointed, in the city of Boston by the superior court, and elsewhere by the county commissioners in their respective jurisdictions.

executor

SECT. 21. If the life of a person is lost by reason of a defect or want If life is lost of repair of a highway, town way, causeway, or bridge, or for want of through defect, suitable rails on such way or bridge, the county, town, or person, by may recover law obliged to repair the same, shall be liable to a fine of one thousand R. S. 25, § 21. dollars, to be recovered by indictment to the use of the executor or ad⚫ministrator of the deceased person, for the benefit of his heirs, devisees,

$1000.

19 Pick. 147.

or creditors: provided, that the county, town, or person, had previous
reasonable notice of the defect or want of repair of such way or bridge. Damages for
SECT. 22. If a person receives or suffers bodily injury, or damage in defect of ways.
R. S. 25, § 22.
his property, through a defect or want of repair, or of sufficient railing 1838, 101.
in or upon a highway, town way, causeway, or bridge, he may recover, 1850, 5, §1.
in an action of tort, of the county, town, place, or persons, by law 8 Met. 388.
obliged to repair the same, the amount of damage sustained thereby, if
such county, town, place, or persons, had reasonable notice of the defect,
want of repair, or of sufficient railing, or if the same had existed for the
space of twenty-four hours previous to the occurrence of the injury or
damage. But no such damage shall be recovered by a person whose
carriage and load thereon exceed the weight of six tons.

13 Met. 292, 297.

1 Cush. 443, 451.

2

Cush. 600./1 alle 3185

6 Cush. 141.

7

Cush. 310.
Cush. 490.
Gray, 61.

11 Cush. 569.

5

7 Gray, 100, 104.
13 Gray, 61.

R. 25, 23.

SECT. 23. If, before the entry of an action provided for in the pre- Party liable ceding section, the defendant tenders to the plaintiff the amount which may tender, &c. he would be entitled to recover, together with all legal costs, and the 7 Cush. 584, plaintiff does not accept the same, and does not recover upon the trial more than the sum so tendered, the defendant shall recover his costs.

ca

SECT. 24. If a town neglects to repair any of the ways or bridges which it is by law obliged to keep in repair, or neglects to make the same safe and convenient when encumbered with snow, such town shall pay such fine as the court in its discretion may order.

Penalty on
towns for neg-
lect, &c.
R. S. 25. § 24.

13 Pick. 343.

147

Fines imposed, appropriated for repairs, except, &c.

R. S. 25, § 25.

Location, when
not to be denied.
R. S. 25, § 26.
5 Greenl. 368.
2¡Pick. 51.
3 Pick. 408.
18 Pick. 312.
4 Cush. 332.

5 Gray, 73.
7 Gray, 343, 345.

Four or more proprietors may call meeting.

R. S. 25, § 34.

surveyor.
R. S. 25, § 35.

with votes.
R. S. 25, § 36.
Penalty for re-
fusing to serve
as surveyor.
R. S. 25, § 37.

Forfeitures, how applied. R. S. 25, § 38.

SECT. 28. The proprietors and occupants so assembled shall choose proprietors and a clerk and surveyor, who shall be sworn. They may determine by a

General powers and duties of

majority of those present the manner of calling future meetings; what repairs of the way or bridge are necessary; and the proportion of money and of labor and materials to be furnished by each proprietor and occupant for such repairs. The surveyor shall have the like powers with respect to such ways or bridges as are exercised by surveyors of highways. SECT. 29. A proprietor or occupant refusing or neglecting to comply prietor neglect with such vote when required by the surveyor, shall be held to pay him the amount of his proportion in money, with ten per cent. interest thereon, in an action of contract.

Penalty on pro

SECT. 25. Except in cases where it is otherwise specially provided, fines imposed on a town for deficiencies in the ways and bridges within the same, shall be appropriated to the repairing of such ways and bridges; and the court imposing such fine shall appoint one or more persons to superintend the collection and application of the same, who shall make a return of their doings therein to the court.

Surveyors may collect taxes. R. S. 25, § 41.

SECT. 26. If on the trial of an indictment or action brought to recover damages for an injury received by reason of a deficiency or want of repair in a highway, town way, causeway, or bridge, it appears that the county, town, or person, against whom such suit is brought, has, at any time within six years before such injury, made repairs on such way or bridge, such county, town, or person shall not deny the location thereof.

Chapter to apply to cities, except, &c.

PRIVATE WAYS AND BRIDGES.

SECT. 27. When four or more persons are the proprietors and rightful occupants of a private way or bridge, and three of them make application in writing to a justice of the peace to call a proprietors' meeting, the justice may issue his warrant therefor, setting forth the time, place, and purpose, of the meeting; which shall be posted up in some public place of the town where such way or bridge is situate, seven days at least before the time appointed for the meeting.

Proprietors

raise money for

such contracts, &c.

SECT. 32. The proprietors and occupants may, at a legal meeting for repairs, and for that purpose, authorize any person to contract by the year, or for a longer or shorter time, for making and keeping in repair such private ways or bridges; may vote to raise such sum of money as they may deem necessary for carrying such contracts into effect; and choose assessors who shall assess each proprietor and occupant for his proportion of such sum, according to his interest in such way or bridge, and deliver the lists of such assessments to the surveyor, with proper warrants of distress, in substance as is prescribed by law for collecting town

R. S. 25, §§ 39,

40.

may

taxes.

SECT. 30. If a person so chosen refuses or neglects to accept that trust and take the oath, he shall forfeit the sum of five dollars, to be recovered in the manner provided for the like neglect or refusal of a person chosen surveyor of highways.

SECT. 31. Damages and forfeitures recovered under the provisions of the two preceding sections shall be applied to the use of the proprietors for repairing said ways or bridges.

SECT. 33. The surveyor may levy and collect such taxes in the same manner as surveyors of highways are empowered to collect highway

taxes.

Penalty on sur

SECT. 34. If a surveyor neglects or refuses to pay over according to veyor for neg- the direction of his warrant the moneys so collected, he shall be liable

lect.

R. S. 25, § 42.

to the same penalties as are provided for a like neglect or refusal of surveyors of highways to pay over moneys to the town treasurer.

SECT. 35. The provisions of this chapter shall apply to cities except as otherwise provided in their charters or acts in amendment thereof.

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