3. Land taken for a highway may be made subject to the easement of a metropolitan sewer without imposing an additional servitude.

4. The fact that the right to construct a sewer in the highways is withdrawn from a town, and exercised by the commonwealth, lays no additional burden on the one who owned the land when it was taken for the highway by the town.

5. On an issue as to whether a way is public or private, testimony that it was or was not included in an assessment for taxation is irrelevant.

Exceptions from superior court, Suffolk county.

Petition by Orray A. Taft against the commonwealth for assessment of damages under the metropolitan sewerage act (St. 1889, c. 439). After a previous trial, Taft died, and Charles S. Lincoln, as executor, prosecuted the petition. There was a judgment for the commonwealth, and exceptions by petitioner. Exceptions overruled.

C. S. Lincoln and Elder, Wait & Whitman, for petitioner. J. D. Long and W. D. Turner, for the Commonwealth.

The rec

HOLMES, J. In Taft v. Com., 158 Mass. 526, 33 N. E. 1046, there was conflicting evidence as to whether Shirley street extended across the petitioner Taft's land before 1875, and the record of a relocation in that year establishing a part of it on Taft's land was held conclusive against him. At the second trial all the witnesses who testified agreed that the way over Taft's land was not known as "Shirley Strect," and that they never knew of any controversy about it. ords of the town of Winthrop were produced, and showed the acceptance in 1868 of "a street laid out from City Farm to Point Shirley, according to a plan drawn by John Lowe." The plan was put in, and did not show any way over Taft's land, and finally one of the petitioners for the relocation of 1875 testified that at the time he signed the petition there was no controversy as to where the southern terminus of Shirley street was. On the other hand, the location by the town in 1868 did not cover the whole of Shirley street. Shirley street was an ancient highway. There was no question that there was a visible way over the place in dispute, and there was some evidence, from Taft himself, and from other witnesses, that there was a way there by prescription. The petitioners contended that on this evidence it must be assumed that the county commissioners had no jurisdiction, but the judge ruled that the way was a public way.

The petitioner makes some slight attempt to fortify his argument by the reference to John Lowe's plan in the relocation, and by suggesting that the petition for relocating was not intended to open this question. These suggestions may be dismissed with a few words. The relocation, although referring to Lowe's plan, overrides it, or supplies by express words what the plan does not show. The petition is broad enough to open any question v.41N.E.no.2-8

which could be raised on relocation, and what the petitioners intended does not matter.

Coming to the main point, we are of opinion that the ruling of the court was right. As was pointed out by the counsel for the commonwealth, the conclusiveness of a relocation made in good faith, and not manifestly absurd, is laid down in stronger terms in Hadley v. Commissioners, 11 Cush. 394, than it was in our former decision (158 Mass. 534, 33 N. E. 1046). See Tufts v. Somerville, 122 Mass. 273, 275; Dean v. City of Lowell, 135 Mass. 55. It is true, on this evidence, as it was at the first trial, that the road in question was a mere spur of Shirley street proper, even if not part of it, and that the decision that it was part of Shirley street was not absurd, even on the evidence produced as to the state of things before 1875; for, stated in a somewhat different way, the evidence showed that Shirley street was an ancient highway, in existence before the location of 1868, and some, if not all, of the evidence was that this continuous portion of the way was also an ancient highway. It was part of the same way in everything but name. Com. v. McDonald, 160 Mass. 528, 36 N. E. 483. If it had not the same name, it had no public name, so far as appears. Under these circumstances, it is impossible to say that the county commissioners were not warranted in finding that the place in question was a part of Shirley street, and their adjudication is not to be made dependent for its effect upon whether a jury agrees with them on the evidence which can be found many years after they decided what it was their duty to decide. It was not argued that highways by prescription may not be relocated, as well as ways laid out by a town. The language of the statute is, "whether the same was laid out by authority of the town or otherwise." Pub. St. c. 49, § 13. "It is immaterial how it was originally established. If by prescription, the effect of a new location would be the same." Stockwell v. Fitchburg, 110 Mass. 305, 309, 310; Richards v. Commissioners, 120 Mass. 401, 402.

The record was complete and clear without the plans, and the failure to produce them did not make it inadmissible.

The other exceptions do not require much discussion. An exception was taken to a ruling that the right of the commonwealth to lay this sewer was not an additional servitude. It is not disputed that, when a highway is laid out, the right to lay common drains is among the elements for which compensation is given. Pierce v. Drew, 136 Mass. 75, 81, 88, and cases cited. But it is said that the metropolitan sewer is an uncommon drain, and cannot be supposed, by any fiction, to have been contemplated and paid for in the laying out of a suburban road. The answer is that our law recognizes no such distinc tions, although they seem to prevail in some other states. Van Brunt v. Town of Flatbush, 128 N. Y. 50, 27 N. E. 973; 2 Dill. Mun.

Corp. (4th Ed.) § 688. When land is taken for a highway, all uses of the land directly or incidentally conducive to the enjoyment of the public easement which the necessity and convenience of the public may require, either then or in the future, are paid for, wherever the highway may be. Boston v. Richardson, 13 Allen, 146, 159, 160. It sometimes is said that the whole beneficial use of the land is taken. Com. v. Gaslight Co., 12 Allen, 75, 77. As, practically, the landowners get the full value of their land in such cases, if there is any injustice it is not they who suffer it. Brainerd v. Clapp, 10 Cush. 6; Cassidy v. Railroad, 141 Mass. 174, 177, 5 N. E. 142; Newton v. Perry, 163 Mass. 322, 39 N. E. 1032. It being settled that one of the uses covered by the taking for a highway is an underground sewer, it extends to any sewer which is natural to the configuration of the ground. See Titus v. Boston, 161 Mass. 209, 212, 36 N. E. 793. The fact that the public, in this case, is represented directly by the commonwealth, instead of by the town, is of no importance. The beneficial interest is the same, either way. Also, it is held that the public right extends to authorizing companies to make use of the streets. Pierce v. Drew, 136 Mass. 75, 81; Com. v. Gaslight Co., 12 Allen, 75. And, if the commonwealth has withdrawn from the town a part of the right formerly vested in it, that is no more a wrong to the plaintiff than a conveyance in fee by a private person having a similar right in gross would be, on the ground that it changed the chances of extinction of the owner's blood.

Temporary interruptions of business, caused by the construction of the sewer along the highway where the commonwealth had a right to construct it, without a new taking from the plaintiff, cannot be recovered for. This was all that the ruling of the court meant. Brooks v. Boston, 19 Pick. 174, 178; Treadwell v. Boston, 123 Mass. 23, 25.

The question to the assessor, whether in assessing Taft's land he ever deducted a roadway, or assessed it in two parts, was irrelevant to any issue which was open, apart from other objections. See Kenerson v. Henry, 101 Mass. 152, 155.

Exceptions overruled.

(164 Mass. 144)

others to enforce a mechanie's lien. The petition was dismissed, and petitioner appeals. Affirmed.

C. F. French, for plaintiff. Weed & Weed, for defendants.

LATHROP, J. This is a petition to enforce a lien, under Pub. St. c. 191, for labor performed on a house situated in Newton, in the county of Middlesex. The petition is to the Second district court of Eastern Middlesex, whose judicial district comprises Waltham, Watertown, and Weston. Id. c. 154, § 2. The city of Newton is "a judicial district under the jurisdiction of the police court thereof." Id. § 1. The petitioner is described in the petition as of Waltham. In the superior court the petition was dismissed on the ground that the land was without the jurisdiction of the Second district court of Eastern Middlesex, and this is the only question which is before us on the petitioner's appeal.

A petition under Pub. St. c. 191, is essentially a proceeding in rem; and the only decree which the court can make, if the lien is established, is a sale of the property, and the distribution of the proceeds. Section 24 et seq. By section 10, if the petition is brought in the superior court it must be "in the county where the building or structure is situated," thus treating it as in the nature of a local action. Section 11 is as follows: "When the amount of the claim does not exceed three hundred dollars, the lien may be enforced by petition to a police, district, or municipal court, or trial justice; and such courts and justices shall have like power and authority within their jurisdiction as are conferred by this chapter upon the superior court, and the parties shall have like rights of appeal as exist in other civil cases." It seems to us very clear that the words "within their jurisdiction" are not to be interpreted solely with reference to the amount claimed, but that they mean that each court, be it police, district, or municipal, shall, if the land is within its judicial district, enforce a lien to the amount stated.

The question remains as to the effect of St. 1893, c. 396, entitled "An act revising and consolidating the laws relating to district and police courts." This act does not, in terms, repeal any part of Pub. St. c. 191. Section 68 provides: "The provisions of this act so far as they are the same as those of existing laws shall be construed as a continuation of such laws and not as new enactments, and references in laws to provisions of law which are re-enacted herein shall be construed as applying to such provisions so incorporated in this act." The only direct reference to Pub. St. c. 191, is in section 12, which gives to district and police courts original and concurrent jurisdiction with the superior court of actions to enforce liens under Pub. St. c. 191, where the amount of the claim does not exceed $1,

000. The only effect of this is to change the jurisdiction given by Pub. St. c. 191, § 11, to police and district courts from $300 to $1,000. Section 13, c. 396, St. 1893, begins as follows: "Civil actions brought in said courts shall be brought in the court in whose district some one of the parties lives or has his usual place of business." It is hence argued that the petition in this case was rightly brought. But we are of opinion that the words "civil actions" refer to transitory and personal actions, and not to local or statutory actions, such as the one before us. The principal object of the act was to revise and amend Pub. St. cc. 154, 155,-the first relating to police, district, and municipal courts, and the second to trial justices,-so far as they applied to district or police courts. None of the provisions of the chapters last cited have any reference to proceedings to enforce liens. This jurisdiction was, as we have seen, specially conferred by Pub. St. c. 191, § 11, upon inferior courts, when the amount in issue was $300. The statute of 1893 in no way affects section 11, except by increasing the amount to $1,000. There is, of course, no reason why a proceeding to enforce a mechanic's lien, which must be brought in the county where the land lies,, if the proceeding is in the superior court, may be brought out of the county, if the proceeding is in an inferior court. Yet, if the petitioner's view is correct, the proceeding in the later case may be brought in Berkshire county, if the petitioner lives there, while the land is in Essex county. We do not think that the legislature intended this, or that apt words to express such an intent have been used. Taking the statutes together, we are of opinion that a proceeding to enforce a mechanic's lien in an inferior court must be brought in that court within whose judicial district the land lies. The petition was therefore rightly dismissed for want of jurisdiction. Petition dismissed.

(164 Mass. 116)

PAGE v. COOK. (Supreme Judicial Court of Massachusetts.

Suffolk. June 21, 1895.)

CONSTRUCTION OF NOTE-TIME OF PAYMENT.

Where a demand note is made payable when the payor and payee mutually agree, the payee may, if the payor refuses within a reasonable time to agree when the note shall be paid, demand payment, and, upon refusal, proceed to collect it.

Report from superior court, Suffolk county; Henry M. Sheldon, Judge.

Action by Hollis Bowman Page against Grace V. Cook on a promissory note. Verdict ordered for defendant, and case reported for consideration of the supreme court,-judgment to be entered for the plaintiff for amount of note, if the ruling was wrong;

MORTON, J. According to the literal construction of this note, although the defendant promises to pay the plaintiff the sum named when he demands it, he may escape the performance of his promise by refusing to agree with the plaintiff when it shall be paid. We think that it hardly could have been the intention of the parties to put it into the power of the defendant thus to avoid payment, and that it is more reasonable to construe it as meaning that it is payable when and after the payor ought reasonably to have agreed. Hawkins v. Graham, 149 Mass. 284, 21 N. E. 312; Sloan v. Hayden, 110 Mass. 141; Black v. Bachelder, 120 Mass. 171; White v. Snell, 5 Pick.. 426; Crooker v. Holmes, 65 Me. 195; Works. v. Hershey, 35 Iowa, 340; Lewis v. Tipton, 10 Ohio St. 88. The promise to pay is absolute. It is only the time of payment which. is left to future agreement. Evidently, it is expected, from the tenor of the note, that the parties will agree, and that a time will be fixed, and that the note will be paid.. But no time is fixed within which that agreement is to be made. The law will therefore imply a reasonable time. Besides, it is the payment, not the nonpayment of the note, for which the parties are providing. If the payor does not, within a reasonable time, agree when the note shall be paid, there is nothing unjust, nor at variance with the real meaning of the contract, in holding that the payee may thereupon demand payment, and, if the note is not paid proceed to collect it. The case of Barnard v. Cushing, 4 Metc. (Mass.) 230, is distinguishable. The question chiefly discussed in that case was whether the indorsement on the note constituted a part of it, and the court held that it did. The indorsement expressly provided, not only that the payees would receive the amount of the note when convenient for the promisors to pay, but that they would not compel its payment. In bringing suit, the payees proceeded, therefore, în direct violation of their agreement. Possibly, if the question arose now, a different result might be reached from that arrived at in that case. According to the terms of the report, the entry must be: Verdict set aside, and judgment for the plaintiff for amount of the note, with interest from the date of the writ.

(164 Mass. 122) MCGILVRAY v. WEST END ST. RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1895.)

ASSAULT-LIABILITY OF ASSAILANT'S EMPLOYER.

Where a person who has paid his fare on a street car to his destination gets off when the car is switched into the car house before reaching his destination, and, while standing in the street, with one foot resting on the step to the car house, engages in an altercation with the conductor over the fact that the car did not run through, and that he was not informed that it would be switched, and on that account is assaulted by the conductor, he cannot recover of the company, the conductor's act not having been within the scope of his employment.

Appeal from superior court, Suffolk county; John Hopkins, Judge.

Action by Daniel McGilvray against the West End Street-Railway Company for an assaalt committed by one of defendant's employés. The court ruled that plaintiff had no evidence on which to go to the jury, and he excepts. Exceptions overruled.

Plaintiff testified that while he was standing in the street with one foot on the sidewalk and the other on the step to defendant's car house, waiting for a car, he complained to the conductor of the car which had just been switched into the car house, because the conductor had not told him that the car was not going through, and that the conductor, after saying that plaintiff had not asked him if it was going further, and after certain other conversation, assaulted him.

L. M. Child, for plaintiff. Wm. B. Sprout, for defendant.

BARKER, J. If we assume in favor of the plaintiff that, upon the evidence, the jury might find that he had paid his fare through to Prospect street, and that, in addition to his right to remain unmolested upon the public street, he had the right, upon leaving the car which had been switched into the stable, to inquire of the conductor why the contract to carry him to Prospect street was not carried out, and to enter the stable to ascertain when and how he could be carried to his destination, yet the verdict for the defendant was rightly ordered. The only reasonable inference to be drawn from the whole evidence is that while waiting in the public street to take one of the defendant's cars, he saw fit to engage in an altercation with a person who was in fact one of the defendant's servants, and received from him an assault which was not made for any purpose which the jury could find to be part of the defendant's business. The defendant had no control over the place where the plaintiff was, and no duty to protect the plaintiff there from any assaults, although it would be responsible to him for assaults committed upon him there, as elsewhere, by its servants in the scope of their employment. The suggestion that it could be found within the scope of that employment for a servant to punish him for asserting his

rights against the defendant is of course untenable; nor is there sufficient ground in the suggestion that the assault was for the purpose of putting him out of the defendant's premises to warrant submitting the case to a jury. Exceptions overruled.

(164 Mass. 48)

SISE V. WILLARD et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1895.) CONSTRUCTION OF WILL-NATURE OF EState. A testator directed that after his youngest child should attain a certain age certain shares of his estate should be held in trust for his daughters, and that the income thereof be paid over to them "so long as they shall live.' Provision was made for the issue of any child who should die intestate before the youngest child attained said age, but no provision was made for said issue if any child died after that time, and no disposition was made of the share of any child who should die intestate without issue. Held, that the daughters took an equitable life estate only, and were not entitled to their respective shares absolutely.

Appeal from supreme judicial court, Suffolk county; James M. Barker, Judge.

Bill in equity by Edith Sise against Z. A. Willard and others to compel a transfer of certain funds held in trust. The bill was dismissed, and complainant appeals. firmed.

Af

J. L. Thorndike, for appellant. L. S. Dabney, for appellee Lucy A. Willard. W. G. Russell, for appellee Z. A. Willard.

FIELD, C. J. This is a bill in equity, brought by Edith Sise, one of the daughters of John Ware, late of Boston, deceased, testate, against the two trustees under his will, one of whom is her husband, and by amendment the surviving wife and other children of said John Ware and the children of the plaintiff have been made parties defendant. The first wife of the testator was living at the time the will was made, but died in the lifetime of the testator, and he married again, and made provision by a codicil for his second wife, who survived him. At his death he left, besides his widow, five children, all of whom are still living. The object of the bill is to compel an absolute transfer to the plaintiff of the fund held for her benefit by the trustees under the fourth and fifth articles of the will. The youngest of the children of John Ware has already attained the age of 35 years, and the property given in trust has been divided into six equal shares, and the trustees have set apart for the plaintiff one of these shares, which they hold in trust for her benefit, and the income of which they have paid to her from time to time. The children of the testator are one son and four daughters, and the share of the son was conveyed to him, in accordance with the provisions of the will, when the youngest child of the testator reached the age of 35 years. The contention of the plaintiff is

that the entire beneficial interest in the share set apart for her benefit belongs to her, and that she is entitled to have the trust terminated, and this share of the property absolutely transferred to her. The contentions of the respondents are that the plaintiff has an equitable interest in this share for her life only, with the power of testamentary disposition, and that the remainder after her death goes either to her issue, if she leave issue, or to the heirs or distributees of the testator, unless she makes some disposition of it by will, or by an instrument in the nature of a will. They also contend that, if this is not so, and she has the entire beneficial interest, the will of the testator should be carried out during her life, and that the intention of the testator concerning the shares allotted to his daughters is clearly expressed in the will in the following sentence of the fifth article: "But as to the shares of the said property which shall be set apart for my daughters, it is my will that the said trustee shall continue to hold them in trust for their benefit, and shall continue to pay over to them the income from their respective portions for their sole use, and upon their own receipt in writing, so long as they shall live," etc. By the sixth article of the will the testator made provision for the issue of any child in case any of his children should die leaving issue before his youngest child reached the age of 35 years, and without having disposed of his or her share of the property by will; but he made no provision in terms for the disposition of the share of the property allotted to his daughters, if any of them, after his youngest child attained the age of 35 years, should die leaving issue, and without having made a testamentary disposition of her share. There is no provision in terms in the will for the disposition to be made of the share of the property allotted to each child in case any child should die without having disposed of his or her share by will, and without leaving issue, whether the child die before or after the testator's youngest child reached the age of 35 years, although the son's share, after that time, became his absolute property, and would descend in the same manner as his other property. Considering all the provisions of the will, we are of opinion that 'he plaintiff took only an equitable life estate. Up to the time when the division was to be made of the property into shares, the trust property was to constitute one trust, the income of which was to be paid in equal shares to all the children; and, if any child died leaving issue, and without having disposed of his or her share by will, his or her issue were to take their parent's share of the income, and when the time came for division such issue were to take their parent's share of the principal. Up to that time, undoubtedly, the children of the testator had only a life interest, coupled with a power of testamentary disposition. When the time came for

a division of the property into shares, the son's share was to become his absolute property, but each daughter's share was to remain in trust on a separate trust for her life, with the power of testamentary disposition; but that is all the change which the will in terms provides for. If it be implied that on the death of each daughter after the division her share shall go to her issue, if she leave issue, and make no testamentary disposition of the property, still such issue would take as legatees under the will, and not as heirs or distributees of their mother. There is absolutely no provision that, on the death of any of the children without issue before the division, or on the death of any of the daughters without issue after the division, if no testamentary disposition has been made, the share of each child shall go to his or her heirs or distributees. The gift is to the trustees, and the children take only equitable interests, and up to the time of the division this interest is clearly for life. After the division, the son's share is absolute, and each daughter's share is to be held on a separate trust, but we can find no language in the will by which the interest of the daughters in the property is enlarged. It still remains, we think, an interest for life. Collins v. Wickwire, 162 Mass. 143, 38 N. E. 365. This is the principal distinction between the present case and Forbes v. Lothrop, 137 Mass. 523. The court in that case, from the language of the will, and particularly from the clause that at the death of the wife the whole property was "to be equally divided among all my children and their heirs by right of representation," decided that the intention of the testator was to give to his daughter Mary the whole equitable interest in her share, which would pass to her heirs or distributees if she at her decease made no disposition of it "by will or otherwise." We can find no equivalent words in the present will. In the view we have taken of the extent of the plaintiff's interest in the share set apart for her, it is unnecessary to consider whether, if the whole beneficial interest in the share absolutely belonged to her, she would be entitled to a decree for a conveyance against the clear intention of the testator that the share should be held in trust for her during her life. It is premature now to consider whether, on the death of the plaintiff leaving issue, but having made no testamentary disposition of her share, that share goes to such issue. bill must be dismissed. So ordered.

The

(164 Mass. 84)

DEGNAN v. JORDAN et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1895.) INJURY TO EMPLOYE-CONTRIBUTORY NEGLIGENCE. Plaintiff was an elevator tender, and, on starting to work in the morning, was informed that the elevator was out of order. Plaintiff,