#### Mary E. Murphy *vs.*City of Boston

Suffolk.

March 15.

June 23, 1876.

Ames & Mobton, JJ., absent.

Under the St. of 1870, c. 337, § 2, the hoard of street commissioners has no authority to change the grade of an existing street; and a petition for a jury to assess damages, alleging that the damage was caused to the petitioner’s estate by a change in the grade of an existing street made pursuant to an order of the street commissioners, cannot he maintained.

Petition to the Superior Court for a jury to assess the damages to the petitioner’s estate on Silver Street in Boston. The petition alleged that the city had “raised the grade” of said street, and that certain damages were caused thereby.

At the trial, before Rockwell, J., the petitioner offered to prove that Silver Street had been used by the public for foot passengers, and with horses and carriages, for over seventy years, or so long that the memory of man runs not to the contrary; and that in 1874 the grade of the street was raised one foot, in pursuance of a resolve and order of the board of street commissioners, a copy whereof is in the margin,* by the said city, which had previously made repairs thereon.

It was not contended by the petitioner that the street was ever formally accepted by the public authorities prior to the passage of said resolve and order; but the petitioner contended that the street had long been used by the public, and that the *420action of the city in laying out the street, by the above resolve and order, and establishing the grade and filling up the street, was a repair or change of grade; and that, as the petitioner was injured thereby, she might recover.

The respondent contended that the work of raising the street was not a repair or change of grade for which the petitioner could recover in this proceeding; and the judge so ruled, and, by consent of both parties, reported the case, before verdict, for the determination of this court. If the ruling was correct, judgment was to be entered for the respondent; otherwise, the case to stand for trial.

*S. B.*Allen, for the petitioner.

*C. F.*Kittredge, for the respondent.

Colt, J.

The street commissioners, by an order of the board, laid out or- attempted to lay out and fix the grade of Silver Street. The petitioner claims, in her petition, damages for the change of grade only, alleging that the order was only effectual to change the grade of an existing way, which, though not shown by the record to have been laid out or accepted by the public authorities, had nevertheless been used by the public from time immemorial, and had become a public highway within the meaning of the statute. *Jennings*v. *Tisbury,*5 Gray, 73.

The street commissioners of Boston have all the powers formerly exercised by the board of aldermen in the “laying out, altering or discontinuing the streets and ways of said city.” St. 1870, *e.*337, § 2. They may, under these powers, doubtless make changes in the surface required by the proper original construction of a street laid out by them, for which a landowner may have compensation in the damages awarded for the taking. *Snow*v. *Provincetown,*109 Mass. 123. But the commissioners have no authority to change the grade or make repairs upon a street already existing; and if it be true that Silver Street was a public way at the time of the order in question, then the action of the commissioners was of no effect, and the city cannot be made responsible for any unauthorized change of grade which followed upon the facts here presented.

If, on the other hand, Silver Street was in fact first laid out and established by that order, then the petitioner’s remedy is by application for an assessment of damages occasioned by the lay*421ing out of a street, which will include damages for a change of surface caused by its original construction. Gen. Sts. *c.*48. *Hartshorn*v. *Worcester,*113 Mass. 111. *Ryan*v. *Boston,*118 Mass. 248. *Barker*v. *Taunton,*119 Mass. 392. *Geraghty*v. *Boston,*ante, 416. *Judgment for the respondent.*