or ordinary repairs" defined.

"General or ordinary repairs" to street are those made or ordered by officer or boárd not authorized to establish legal grade, or by officer or board authorized to do so, but without specifically determining by order nature and extent of change to be made; but radical and important changes, not merely incidental to reconstruction, may stamp such repairs as specific.

scription or under the mill act. Assuming | 2. Municipal corporations 385(2)—“General the right of the defendant to flow the lands of the plaintiffs rests upon grants, as distinguished from rights acquired by prescription or under the mill act, the evidence in its outstanding features is entirely consistent with the allegations of the declaration that the flowage rights in the plaintiffs' pond are claimed and alleged to be owned by the defendant. This case, in every substantial feature, is governed by the decision of this court upon a demurrer to the declaration in Taft v. Bridgeton Worsted Co., reported in 237 Mass. 385, 130 N. E. 48, 13 A. L. R. 928, the reasoning of which need not be repeated here. It follows therefrom that the request of the defendant for a directed verdict was refused rightly.

[3] The request for a ruling that "the plaintiffs cannot in any event recover for any ice on the Bryant land" should have been given in form or in substance. The plaintiffs under the Bryant license, which upon the evidence was given without consideration and was not an incident to an executory contract of sale, had no right of property in respect to which the license was given and no standing in court to complain of an injury to property which they did not and might never own. The damage to their right to exercise their revocable license was a damage which the law does not recognize as an injury to their property. Walker Ice Co. v. American Steel & Wire Co., 185 Mass. 463, 484, 485, 70 N. E. 937; Handforth v. Maynard, 154 Mass. 414, 28 N. E. 348; Richards v. Gauffret, 145 Mass. 486, 14 N. E. 535; Balcom v. McQuesten, 65 N. H. 81, 17 Atl. 638; Ottawa Gaslight & Coke Co. v. Thompson, 39 Ill. 598. It follows that all the exceptions, except the one taken to the failure of the judge to charge that "the plaintiffs cannot in any event recover for any ice on the Bryant land," must be overruled, and the exception to such refusal must be sustained,

Exception sustained; case to stand for rehearing on the question of damages only. Exception sustained.

L'HUILIER v. CITY OF FITCHBURG. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 9, 1923.)

1. Municipal corporations 385 (2) When change of grade constitutes "specific repairs" stated.

When changes are made in grade of public way by authority competent to fix the grade, which specifically declares nature and extent of changes in record of its proceedings, repairs made accordingly within reasonable time thereafter are "specific repairs."

[Ed. Note. For other definitions, see Words and Phrases, Second Series, Specific Repairs.]

3. Eminent domain 174-Repavement held. a specific repair, within limitation of petition for assessment of damages.

Where municipal board, having authority to establish legal grade of street, by order made part of its record established grade of street and provided for construction by repaving, and grade so established, though substantially coincident with actual grade, varied therefrom to some extent, repair was "specific repair," within St. 1917, c. 344, pt. 2, § 28, requiring petition for assessment of damages to be filed within one year from commencement of work. 4. Municipal corporations ~404(1)—No remedy for damage from repairs to street, except as afforded by statute.

No action is maintainable at common law for damages caused by general or specific repairs on highway, after it is once laid out and constructed, and, there is no remedy, except such as is afforded by the statutes.

5. Eminent domain 174-Court without jurisdiction of petition for assessment of damages not brought in time.

When petition for assessment of damages from specific repairs to street was not filed within one year from commencement of work, as required by St. 1917, c. 344, pt. 2, § 28, the court had no jurisdiction.

6. Eminent domain 174-Limitation of petition for damages for repairs inapplicable to specific repairs.

St. 1917, c. 344, pt. 4, §§ 21, 22, now G. L. c. 79, § 10, providing for assessment of damages to adjoining owner from repair of a way on petition filed within one year after completion of the work, has no pertinency to specific repairs.

Exceptions from Superior Court, Worcester County; F. W. Fosdick, Judge.

Action of, tort by Ernest L'Huilier against the City of Fitchburg to recover damages to plaintiff's interest in premises as lessee, and to his business, by reason of the change of grade of a street. Verdict for plaintiff for $225, and defendant brings exceptions. Exceptions sustained, and petition dismissed.

The jury found, in answer to questions submitted to them, that plaintiff suffered no damage to his interest as lessee, but suffered damages to his business in the sum of $225. Defendant requested rulings, among others: (1) That on the petition and the evidence petitioner was not entitled to recover; (3) that the petition was not seasonably filed, and petitioner was not entitled to recover;

(141 N.E.)

(6) that the proceeding should have beenes are made in the grade of a public way by instituted within one year from the date the an authority competent to fix the grade, work was actually commenced. which specifically declares the nature and

J. F. McGrath and John C. Fitzgerald, both extent of the changes in the record of its of Fitchburg, for petitioner.

Charles T. Flynn, City Sol., of Fitchburg, for respondent.

RUGG, C. J. This proceeding was begun as an action of tort by a writ in ordinary form dated and served on the defendant on October 22, 1920, and returnable to the superior court on the first Monday of December, 1920. No declaration was inserted in the writ or filed in court, but on the return day of the writ there was filed a paper entitled "Plaintiff's Petition." Therein it was alleged that the petitioner was lessee by written lease for a term of two years beginning with the 1st day of April, 1919, of a parcel of land on Fairmount street in Fitchburg; that, by order passed by the city council of Fitchburg, the grade of Fairmount street was established and raised from its

former grade and the work of construction in accordance therewith had been completed to the damage of the leasehold estate; that

proceedings, repairs made accordingly within a reasonable time thereafter are specific repairs. General or ordinary repairs are those made or ordered either by an officer or board not authorized to establish the legal grade, or by an officer or board authorized to establish the legal grade but without specifically determining by its order the nature and extent of the change to be made, although occasionally, even in this class of orders for repairs, radical and important changes not merely incidental to reconstruction may stamp the repair as specific rather than general or ordinary. Sullivan v. Fall River, 144 Mass. 579, 585, 12 N. E. 553; Sisson v. New Bedford, 137 Mass. 255, 257, 258; Albro v. Fall River, 175 Mass. 590, 593, 56 N. E. 894; Bigelow v. Worcester, 169 Mass. 390, 392, 48 N. E. 1; Draper v. Mayor of Fall River, 185 Mass. 142, 149, 69 N. E. 1068.

[3] It is plain that under these established principles the order of November 26, 1918, provided for specific as distinguished from general or ordinary repairs. It was passed within one year after the commencement of by the municipal board clothed with authorthe work of construction the petitioner ap-ity to establish the legal grade of the street, plied to the city council to award him compensation for such damage; and that, although more than 30 days had elapsed after filing the petition, no damages had been awarded.

There was evidence tending to show that the grade of Fairmount street was legally established in 1886. Its actual grade shown by pavement laid in 1901 and remaining unchanged until 1919 was from 7 to 10 inches higher than the established grade. In 1918 the commissioners of public works petitioned the city council to re-establish the grade because the existing grade did not coincide with the legally established grade. The city council, by order adopted on November 26, 1918, ordered and decreed that the grade be established and that the street be constructed "in the manner and according to tables annexed to the said order." The grade thus legally established was substantially coincident with the actual grade, the difference not being appreciable to the eye, but being in truth near the plaintiff's premises from 12 to 1% of an inch lower than the previous actual grade. The maximum difference at any point on the street between the former actual grade and the newly established grade was 2% inches. The work of repavement in compliance with the order of November 26, 1918, was commenced on September 8, 1919, and completed on October 18, 1919.

and as a part of the record of its proceedings it changed substantially that grade and prescribed considerable modifications as to construction and surfacing of the street. The cases upon which the petitioner relies, Barker v. Taunton, 119 Mass. 392, Proctor v. Stone, 158 Mass. 564, 33 N. E. 704, and Galeano v. Boston, 195 Mass. 64, 80 N. E. 579, are too clearly distinguishable from the case at bar in their facts to require comparative analysis.

[4, 5] It is provided by St. 1917, c. 344, pt. 2, § 28 (see now G. L. c. 79, §§ 10, 14, 16), that a petition to the superior court for a jury for the assessment of damages arising from specific repairs must be filed within one year from the day when work is actually commenced. No action can be maintained at common law for damages caused by general or specific repairs upon a highway after it is once laid out and constructed. There is no, remedy except such as is afforded by the statutes. Hyde v. Boston & Worcester Street Railway, 194 Mass. 80, 80 N. E. 517. The present proceeding is brought and can be maintained only under the statutes. It manifestly was not commenced within the time thus limited in the statutes. This is true, even if it be assumed in favor of the plaintiff, but without intimating a decision to that effect, that the date of the writ may be treated as the time of filing [1, 2] The question arises whether the or- the petition. "In every case where a right der of November 26, 1918, establishing a new is given by statute coupled with a requiregrade and providing for the repavement of ment that an action to enforce it shall be the street in conformity thereto, was a spe- commenced within a stated period, "Time cific repair or a general repair. When chang- has been made of the essence of the right,

and the right is lost if the time is disregard- Action of tort by Frank J. Duggan against ed. The liability and the remedy are creat- Lewis A. Woodis for personal injuries and ed by the same statutes, and the limitations damages to an automobile in a collision. of the remedy are, therefore, to be treated Finding for defendant, and plaintiff brings as limitations of the right.' The Harris- exceptions. Exceptions overruled. burg, 119 U. S. 199, 214." Crosby v. Boston Elevated Railway, 238 Mass. 564, 566, 131 N. E. 206, 207; Sterling v. Leyland & Co. Ltd., 242 Mass. 8, 13, 136 N. E. 60, and cases there collected; Cosmopolitan Trust Co. v. Cohen, 244 Mass. 128, 133, 134, 138 N. E. 711. The court has no jurisdiction to entertain

a petition brought after the time fixed by the statute has expired. Peterson v. Waltham, 150 Mass. 564; Sweet v. Boston, 186 Mass. 79, 82, 71 N. E. 113; International Paper Co. v. Commonwealth, 232 Mass. 7, 10, 121 N. E. 510, and cases there collected.

[6] Since the damage alleged to have been sustained was caused by specific repairs, the provisions of St. 1917, c. 344, pt. 4, §§ 21, 22 (see now G. L. c. 79, § 10), have no pertinency and do not aid the plaintiff.

It becomes unnecessary to consider other defenses which might be presented if there were jurisdiction over the matters complained of.

It follows that the first, third and sixth of the defendant's requests for rulings ought to have been granted. The entry must be (Corbett v. Boston & Maine Railroad, 219 Mass. 351, 356, 107 N. E. 60, 12 A. L. R. 683):

Petition dismissed.

DUGGAN v. WOODIS.

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 10, 1923.)

1. Master and servant 330 (3) — Evidence held not to show automobile driver's agency for owner.

In action for damages sustained in automobile collision, evidence held to warrant finding that plaintiff had not sustained burden of proving that driver of defendant's automobile was in defendant's employ and engaged in defendant's business at time of accident.

2. Appeal and error 219(2), 931 (7)-Contention that defendant's automobile was nuisance not considered under the pleadings. Where declaration alleged only that defendant, his agents or servants, negligently ran an automobile against plaintiff, it must be presumed that judge's rulings were made with reference to the state of the pleadings, and where the contention that defendant's car, operated under a dealer's license, was a public nuisance and an outlaw, under St. 1915, c. 16, § 2, because let for hire by the owner, was not raised by any specific request for findings or rulings, it will not be entertained on exceptions.

Exceptions from Superior Court, Worcester County; E. B. Bishop, Judge.

Defendant's automobile was being driven by one Mullins, who had been in defendant's employ for some time. Plaintiff and one of his witnesses testified that after the acci

dent defendant stated that Mullins was in his employ. The police sergeant testified that Mullins stated he was employed by de

fendant. Mullins testified that on the day of the accident he hired the car from defendant and paid him $30 for its use from 1 p. m. to 11 p. m., and drove it to Revere

Beach with four friends, who contributed an equal amount; that he had the car to go any place he desired; that he returned from Revere Beach about 9:30 p. m.; that each

of the passengers paid $6 to him, and he

paid defendant; that he did not drive the car that day on defendant's business; and

that after his return from Revere Beach he received a telephone message, as a result of which he took the same car and left the garage just prior to the accident. Defendant testified that Mullins hired the car and paid $30 for its use; that Mullins told him about where he was going, but that who to follow the witness had nothing to do with. The court found that plaintiff had not sustained the burden of showing that Mullins was in defendant's employ and engaged in defendant's business at the time of the accident.

Mullins was to take and what course he was

F. P. Ryan, of Worcester, for plaintiff. McDonald & Proctor, of Worcester, for defendant.

PIERCE, J. This is an action of tort, brought by the plaintiff against the defendant to recover damages for injury to his person and to his automobile as a result of a collision.

The claim of the plaintiff is set out in two counts of his declaration:

"Count 1. The plaintiff says that on or about the 22d day of August, 1920, he was riding in an automobile along Mechanic street in the city of Worcester, and in the exercise of due care; that the defendant, his agents or servants, negligently propelled an automobile into and against the automobile of the plaintiff, causing the plaintiff to be injured about the head, back and limbs.

"Count 2. The plaintiff says that on or about the 22nd day of August, 1920, he was riding in an automobile along Mechanic street in the city of Worcester, and in the exercise of due care; that the defendant, his agent or servant, negligently propelled an automobile into and against the automobile of the plaintiff; that the automobile of the plaintiff was damaged greatly necessitating the expenditure of large

(141 N.E.)

McCARTHY v. BECKWITH.

(Supreme Judicial Court of Massachusetts. Hampden. Oct. 10, 1923.)

Municipal corporations 705 (2)-Statute as to right of way held applicable, where vehicle turning into intersecting street; "intersecting way."

G. L. c. 89, § 8, providing that driver of vehicle approaching "intersecting way" (defined in chapter 90, § 1, as any way joining another, whether crossing it or not) shall grant right of way to vehicles approaching from his right if arriving at point of intersection at approximately the same instant, was applicable where automobiles were approaching intersecting street from opposite directions, and one turned to the left into such street, though the intersecting street did not cross the other street.

[Ed. Note. For other definitions, see Words and Phrases, Second Series, Intersecting Way.]

evidence the defendant requested, and the court refused to give, subject to the defendant's duly saved exceptions, the following instructions:

“(1) If the plaintiff's car and the defendant's approached the intersection of Berendo street and Grenada Terrace at approximately the same instant, the defendant was entitled to the right of way, and the plaintiff's failure to grant it to him amounted to contributory negligence and bars recovery by the plaintiff.

"(2) If the plaintiff's car and the defendant's approached the intersection of Berendo street and Grenada Terrace at approximately the same instant, the defendant was entitled to the right of way, and the plaintiff's failure to grant it to him was evidence of contributory negligence."

The court gave neither of these requests in form or substance. Other than upon the failure and refusal of the court to rule as requested, no exceptions were taken to the

Exceptions from Superior Court, Hampden charge. County: Christopher T. Callahan, Judge.

Action of tort by Thomas F. McCarthy against Leon A. Beckwith for damage to plaintiff's automobile. Verdict for plaintiff for $300, and defendant brings exception. Exception sustained.

G. L. c. 89, § 8, upon which the plaintiff relies, reads as follows:

"Every driver of a motor or other vehicle approaching an intersecting way, as defined in section one of chapter ninety, shall grant the right of way, at the point of intersection to vehicles approaching from his right, provided that Defendant excepted to the refusal of in- such vehicles are arriving at the point of interstructions and rulings that defendant had section at approximately the same instant; exthe right of way, and that plaintiff's failure cept that whenever traffic officers are standing to grant it amounted to contributory negli- at such intersection they shall have the right to gence, and was evidence of contributory neg-regulate traffic thereat."

ligence.

Graves & Moran, of Springfield, for plain

The first section of G. L. c. 90, contains this provision:

66

tiff. 'Intersecting way,' [shall mean] any way Horace E. Allen and Allen, Yerrall & Bel- which joins another at an angle, whether or not lows, all of Springfield, for defendant.

it crosses the other."

PIERCE, J. This is an action of tort for The plaintiff contends that this statute damages to the plaintiff's automobile, sus- has no application in the case in question tained in a collision with the defendant's because the plaintiff and defendant were automobile, at the intersection of Berendo traveling on the same street; that the statstreet and Grenada Terrace, both being pub-ute is applicable only when vehicles are aplic streets in the city of Springfield. Grena- proaching each other from intersecting da Terrace runs east and west. Berendo streets; and that this was the intention of street runs north and south to Grenada Ter- the Legislature in framing the act. race, but does not enter it. Immediately before the collision, the plaintiff was driving east on the southerly side of the terrace, while the defendant was driving west on the northerly side of the terrace. As the cars approached the intersection of the street and terrace the plaintiff turned his car to the left and north to go into Berendo street. Meanwhile, at approximately the same instant, the defendant approached the intersection of the streets on the right of the plaintiff.

There was evidence from which the jury could find that the collision and the damage which resulted therefrom to the plaintiff's automobile were attributable to the negligence of the defendant. At the close of the

We think the dangers and perils incident to the use of ways located in relation to each other as these ways were, which arise from the use of streets by motor vehicles, are as great as they would be if the street crossed the terrace. If Berendo street crossed the terrace to the south and the plaintiff entered the street to drive to the north, under the statute, the plaintiff, in the absence of a traffic officer would be obligated to give way to vehicles on his right approaching the intersection of that street with the terrace, if the vehicles on his right were arriving at the point of intersection at approximately the same time. We think the purpose of the statute, as shown by its terms and the intent of the Legislature in its en