A fire district adopted a by-law that "the annual meeting shall be called according to law." Held, that a meeting called and notified in accordance with Rev. Laws, c. 32, § 55, providing that the clerk shall post written notices thereof in six public places in the district at least seven days prior to the meeting, and publish the same in a newspaper, if any, in the town, was valid, though the warrant was not posted and published in accordance with an article previously voted by the district but not adopted as an amendment of the by-laws.

3. Under Rev. Laws, c. 32, § 55, giving the moderator of a fire district the powers of the moderator of a town meeting, and chapter 11, § 332, providing that the moderator of the town "shall * make public declaration of all votes," where at a meeting of a fire district the tellers, in the presence of the moderator, declared the vote on an election of chief engineer, and such declaration was received by the meeting, that was a declaration by the moderator within the statute.

4. Where parol evidence of the proceedings of a fire-district meeting was put in without objection, the right of a party to have the question as to what proceedings were had determined by the record, alone, was waived.

5. The record of a fire-district meeting stating that: "The tellers made the following report: Total vote cast, 530; for chief engineer, F. has 268, C. has 261. The ballots were sealed by M., moderator, and D., clerk," is a sufficient record of the election of F.

6. Where a candidate for office causes a recount of the ballots to be had, the opposing candidate does not waive his right to object that the proceeding is illegal by being present thereat.

7. After a meeting of a fire district has dissolved, no recount of the ballots cast thereat is possible, and the ballots should be destroyed, as provided in case of elections in cities and towns by Rev. Laws, c. 11, § 241.

Report from supreme judicial court, Franklin county; Marcus P. Knowlton, Judge. Petition for mandamus by Jacob Fritz against Anthony Crean. Writ granted.

Dana Malone, for petitioner. F. L. Greene, Wn. A. Davenport, and A. D. Flower, for respondent.

LORING, J. This is a petition for a writ of mandamus brought to enforce the right of the petitioner to the office of chief engineer of the Turner's Falls fire district. It appeared at the hearing that a meeting of the fire district was held on May 19, 1902, at which the tellers of the meeting reported that the petitioner had 268 votes and the respondent 261. Subsequently, upon the petition of 11 voters of the district, the registrars of voters of the town of Montague recounted the votes, and found and reported to the clerk of the district that the petitioner had 261 votes and the respondent 265. Thereupon the clerk gave a certificate of election to the respondent, and he has since acted as chief engineer.

The respondent offered to show that the count made by the registrars of voters was correct, by producing the original ballots, coupled with evidence that they had remained sealed and not tampered with since the meeting, except when handled on the recount.

It is now admitted that there is no authority for recounting the votes cast at such a 65 N.E.-53

meeting, and the legality of the petitioner's election is attacked on other grounds.

1. The first ground on which it is attacked is that the meeting was not properly called. It is provided by Rev. Laws, c. 32, § 55, that the meeting shall be called when requested in writing by the chief engineer, etc. The warrant in case of this meeting was in writing, and was signed by the chief engineer. That was sufficient.

2. The second ground of attack is that the meeting was not properly notified. This contention rests on the fact that at some time not stated, prior to the meeting in question, the district had voted, under an article "to determine the manner of posting warrants and to transact any other business that may legally come before the meeting," "that copies of the warrant be posted at the Farren Hotel, depot, post office, and by publishing in the Reporter at least seven days before said meeting." This vote was not complied with in the notification given of the meeting in question. But the act creating the fire district provides that it "may adopt by-laws prescribing by whom and how meetings may be called and notified." St. 1886, c. 266, § 11. One of the by-laws of the district provided that "the annual meeting shall be called according to law." The vote in question did not operate as an amendment of the bylaws, because it never had been "presented at a regular meeting of the board of engineers," or "received the sanction of the majority of the board of engineers at a subsequent regular meeting," as required by the article in the by-laws of the district as to amending those by-laws. The meeting was notified in accordance with Rev. Laws, c. 32, § 55, and for that reason was notified in compliance with the by-laws of the district, which adopted the provisions of the general laws. Rev. Laws, c. 32, § 55.

*

3. The next contention is that the moderator did not make a declaration that the petitioner was elected. By Rev. Laws, c. 32, § 55, the moderator of the fire district has the powers of the moderator of a town meeting; and by Rev. Laws, c. 11, § 332, it is provided that the moderator of the town "shall * make public declaration of all votes." In the case at bar, the declaration was made by the tellers in the presence of the moderator, and was received by the meeting. Assuming, without deciding, that a declaration by the moderator was necessary, we think that that was a declaration by the moderator within the statute. See, in this connection, Putnam v. Langley, 133 Mass. 204, 205.

4. The next objection is that the record of the clerk of the district does not show that a declaration of the election of the petitioner was made by the moderator. The record of the clerk is as follows: "The tellers made the following report: Total vote cast, 530; for chief engineer, Jacob Fritz has 268, Anthony J. Crean has 261. The ballots were

sealed by Lucas J. March, moderator, and D. F. Daly, clerk, and at 11:06 p. m. the meeting voted to dissolve. The clerk was authorized to care for the ballots by the moderator. Daniel F. Daly, Clerk." As parol evidence of the doings of the meeting seems to have been put in without objection, the responden: would seem to have waived his right to have the matter of the declaration having beer made determined by the record alone, as to which see School Dist. v. Atherton, 12 Metc. 105, 113. But, however that may be, we think that the record is a sufficient record of the election of the petitioner. It states that there was a declaration of the election accepted by the meeting. That imports a declaration by the moderator, if such a declaration is necessary.

5. The next objection is that the petitioner is estopped to contest the recount because he was present at it. We think that the petitioner could attend, when he was notified that it was proposed without right to recount the votes, to guard his interests, without thereby being estopped to set up the illegality of the recount. As no recount is provided for, the action of the clerk in preserving the ballots was illegal; and the result declared at the meeting cannot be affected by the recount made by the registrars of voters. For the same reason the offer to prove that the count made in the meeting was erroneous was rightly refused. Where no provision is made for a recount, the original count is final, and binding upon the court as well as upon others. See Opinion of Justices, 117 Mass. 599, 600. As soon as the meeting dissolved, no recount being possible, the ballots should have been destroyed, as is provided in case of elections in cities and towns. Rev. Laws, c. 11, § 241.

Writ to issue.

(182 Mass. 111)

NORDQUIST v. FULLER. (Supreme Judicial Court of Massachusetts. Worcester. Jan. 8, 1903.)

SERVANT--INJURIES-NEGLIGENCE OF FELLOW SERVANT.

1. While workmen were engaged in erecting a building, one of them was killed by falling plauks which were being hoisted to an upper floor, when the chain with which the planks were bound together broke. The chain had been purchased of a reputable dealer a year before, tested before it was sold, and would safely carry from one to two tons. After the accident a flaw was discovered in the link that broke, but at the opposite end from the break. The planks were green and wet, and unusually heavy on that account, and the load under which the chain broke weighed three tons. There was no evidence that the superintendent was present when the load was made up, or that he gave any directions about the loading. Held, that the accident resulted from the negligence of fellow servants in overloading the chain, and the master was not responsible.

Exceptions from superior court, Worcester county; Francis A. Gaskill, Judge.

Action by Amanda Nordquist against J.

MORTON, J. While at work upon a building which the defendant was erecting, the plaintiff's husband was instantly killed by the falling upon him of a lot of planking which was being hoisted up onto one of the floors of the building. The fall was caused by the breaking of the chain with which the planks were bound together. This action is brought by the plaintiff under the employers' liability act to recover damages for the death. At the close of the plaintiff's evidence, the defendant asked the court to rule that the plaintiff was not entitled to recover, and to direct a verdict for the defendant. The court so ruled, and ordered a verdict for the defendant. The case is here on exceptions to this ruling.

But we

We think that the ruling was right. We assume, without deciding, that the chain which broke was part of the ways, works, and machinery, and that there was evidence tending to show that Wheeler was acting as superintendent, and that his sole or principal duty was that of superintendent. think that the breaking of the chain was due to overloading it, and not to any defect in the chain, and that the overloading was the act of fellow servants, and not the result of any negligence on the part of Wheeler. There was uncontradicted evidence tending to show that the chain had been bought about a year before from a reputable firm, and that it had been tested by the firm before it was sold. There was some evidence that one end of the link which broke showed a flaw on the inner side near the weld, and looked rusty. But the link broke at the opposite end, and where it broke it was quite bright, as one of the witnesses testified. In addition to the fact that the chain had been bought of a reputable firm (Buckland v. Railroad Co., 184 Mass. 3, 62 N. E. 955), the flaw, if there was one, did not contribute to the accident. There was testimony that the chain would safely carry from one to two tons, and that the load under which it broke weighed three tons,-one witness, the brother of plaintiff's husband, testified, six tons, but it is manifest that he was mistaken. The lumber was green spruce, and was also wet, which made it heavier. There was the usual number of planks in the load, from 60 to 70. There is nothing to show that Wheeler gave any directions as to the loading, or that he was present on the spot when the load was made up. It must have been obvious to the men who were making up the load that the planks were wet, and, if they put on more planks than the chain could safely carry in

the condition in which they were, we do not see how their act can be imputed to negligent superintendence on the part of Wheeler. It was one of the details which he could properly leave to the men who were doing the work, and any negligence on their part would be the negligence of fellow servants. Exceptions overruled.

(182 Mass. 397)

NEW ENGLAND TELEPHONE & TELE-
GRAPH CO. OF MASSACHUSETTS v.
BOSTON TERMINAL CO.
BOSTON ELECTRIC LIGHT CO. v. SAME.
(Supreme Judicial Court of Massachusetts.
Suffolk. Jan. 6, 1903.)

MUNICIPAL CORPORATIONS-STREETS-UNDER-
GROUND CONDUITS-RIGHTS OF OWNERS-
TERMINATION BY LEGISLATURE-TAKING OF
STREET FOR OTHER USE-DAMAGES.

1. While the legislature usually delegates to local authorities the regulation and control of the public rights in streets, it may at any time resume such authority and exercise it as it deems best.

2. Pub. St. c. 109, §§ 1-3; Id. c. 27, § 47; Id. c. 28, § 4; St. 1883, c. 221; St. 1889, c. 398; St. 1894, c. 454; Rev. Ord. Boston 1885, c. 28, $$ 25-32; Rev. Ord. Boston 1890, c. 18, §§ 3, 6, 10, and chapter 3, § 21; and Rev. Ord. Boston 1892, c. 36, §§ 8, 14, 16, and chapter 3, § 21,-which allow private corporations to construct underground conduits in certain streets for the carrying of wires, but none of which purport to convey private rights of property, are merely provisions for the regulation of the different public rights in the street, and the rights of the corporations are subject to control or termination by the legislature at any time, regardless as to whether express provision is made therefor in the statutes and ordinances.

3. Acts 1896, c. 516, provided for a taking of portions of the street by another corporation for a different public purpose, and section 23 provided that the laws in regard to the assessment of damages for land taken for railroads should apply to any taking of land under such act. Held that, since the rights of the corporations under the enactments providing for the conduits were subject to termination at the will of the legislature, they were not such rights as would entitle them to damages for the loss of the conduits when the land was taken for the other purpose.

4. As the rights of such corporations in the streets constitute a part of the public easement in the streets, they were terminated when the streets were vacated, as such, by the legislature, and there were no rights remaining for which damages could be awarded.

Report from superior court, Suffolk county; Charles U. Bell, Judge.

Petitions by the New England Telephone & Telegraph Company of Massachusetts against the Boston Terminal Company, and by the Boston Electric Light Company against the same defendant. On report from the superior court. Judgment for respondent in each case.

Saml. L. Powers, Francis A. Houston, and Matt. B. Jones, for petitioners. Saml. Hoar and Woodward Hudson, for respondent.

KNOWLTON, C. J. These are petitions for an assessment of land damages under St. 1896, c. 516, § 23. Each of the petitioners MASS.DEC.61-66 N.E.-45

is a corporation established under the laws of Massachusetts; the first for the transmission of intelligence by electricity, and the second for the purpose of manufacturing, transmitting, and supplying electricity for lighting. Each had conduits and wires in certain streets of the city of Boston when these streets were discontinued and taken for a terminal station under St. 1896, c. 516. They were duly notified, and had ample opportunity to remove their property in the streets, so far as it was capable of being removed. The wires were removed, but the conduits and manholes were so constructed that they could not be taken up without such destruction as would render them worth. less. The petitioners contènd that they had rights of property in the streets, for which they are entitled to compensation. rights were acquired under certain statutes and under ordinances of the city of Boston, which it is not necessary now to consider particularly. The decisions in these cases depend chiefly upon general principles which lie at the foundation of legislation touching public streets and highways.

Their

In this commonwealth, on the laying out and construction of a highway or public street, the fee of the land remains in the landowner, and the public acquire an easement in the street for travel. This easement is held to include every kind of travel and communiçation for the movement or transportation of persons or property which is reasonable and proper in the use of a public street. It includes the use of all kinds of vehicles which can be introduced with a reasonable regard for the safety and convenience of the public, and every reasonable means of transportation, transmission, and movement beneath the surface of the ground, as well as upon or above it. Accordingly it has been held that the public easement which is, paid for in assessing damages to the owner inIcludes the use of the street for horse cars and electric cars, for wires of telegraph, telephone, and electric lighting companies, and for water pipes, gas pipes, sewers, and such other similar arrangements for communication or transportation as further invention may make desirable. Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7; Suburban Light & Power Co. v. Aldermen of Boston, 153 Mass. 200, 26 N. E. 447, 10 L. R. A. 497; Attorney General v. Railroad Co., 125 Mass. 515, 28 Am. Rep. 264; Howe v. Railway Co., 167 Mass. 46, 44 N. E. 386; Natick Gaslight Co. V. Inhabitants of Natick, 175 Mass. 246, 56 N. E. 292. All these agencies have a share in the use of the streets under the rights of the public. A person who walks or drives through a public street does it as one of the public, and not in the exercise of a private right of way. The permanent constructions above referred to are permitted because they are used by the public, or a part of the public, or are held and used in private ownership for the benefit of the public. The

rights in the streets which are so exercised or enjoyed are not private rights of property, but are a part of the public rights which are shared in common, although used and enjoyed in different ways by the different members of the public who pass through a street, or whose property is carried through it. These public rights are primarily subject to the regulation and control of the legislature, which represents the public. This regulation and control is usually delegated to the local authorities by general laws, and sometimes by special laws. But the legislature remains all the time the supreme authority in regard to all public rights and interests. The authority which it delegates, it may at any time resume, and then it may exercise it as it deems best. Wales v. Stetson, 2 Mass. 143, 3 Am. Dec. 39; Spaulding v. Nourse, 143 Mass. 490, 10 N. E. 179; Tinker v. Inhabitants of Russell, 14 Pick. 279; Union Ry. Co. v. Mayor, etc., of City of Cambridge, 11 Allen, 287; Railroad Co. v. Wakefield, 103 Mass. 261; Attorney General v. Boston, 142 Mass. 200-203, 7 N. E. 722; Brimmer v. City of Boston, 102 Mass. 19-22; Stone v. City of Charlestown, 114 Mass. 214224; Hill v. City of Boston, 122 Mass. 344, 23 Am. Rep. 332; Attorney General v. Power Co., 157 Mass. 86, 31 N. E. 482, 16 L. R. A. 398; Natick Gaslight Co. v. Inhabitants of Natick, 175 Mass. 246, 56 N. E. 292.

All the statutes and ordinances upon which the petitioners rely as a justification for their action in constructing conduits in the public streets, and as giving them rights of property there, are merely provisions for the regulation of the different public rights in the streets. None of them purports to convey private rights of property. Most of them expressly state the limitations upon the authority given, and make the petitioners subject to possible future proceedings terminating or modifying their rights. Pub. St. c. 109, 88 1-3; Id. c. 27, § 47; Id. c. 28, § 4; St. 1883, c. 221; St. 1889, c. 398; St. 1894, c. 454; Rev. Ord. Boston 1885, c. 28, §§ 25-32; Rev. Ord. Boston 1890, c. 18, §§ 3, 6, 10, and chapter 3, § 21; Rev. Ord. Boston 1892, c. 36, $$ 8, 14, 16, and chapter 3, § 21. But where there is no such express provision the result is the same. Their rights in connection with the rights of others of the public are subject to reasonable regulation, or even to termination at any time, if the supreme authority, acting in the public interest, shall so determine. It follows that they have no rights of property in the street, and their constructions that were built therein were personal property, which they had a right to remove, and which could not be subjects for the assessment of damages under statutes of this kind. Com. v. Lowell Gaslight Co., 12 Allen, 75; Dudley v. Aqueduct Corp., 100 Mass. 183; Natick Gaslight Co. v. Inhabitants of Natick, 175 Mass. 246, 56 N. E. 292; Edmands v. City of Boston, 108 Mass. 535; Allen v. City of Boston, 137 Mass. 319; Williams v. Com.,

168 Mass. 364, 47 N. E. 115. See St. 1902, c. 342.

Looking at the cases from a little different point of view, these public rights, being subject to the control of the legislature, were terminated by St. 1896, c. 516, which provided for the discontinuance of the streets, and a taking by the respondent. When these places ceased to be public streets, all rights of the public in them came to an end, and they became subject to the different kind of public use to which they were appropriated by the statute. It is a familiar rule that the discontinuance of a public way terminates the right of travel of the public in it, and leaves it for other uses. The action taken by the respondent first worked a discontinuance of the streets, and then appropriated them to the public use for a terminal station. The damages to be assessed were only for rights of property in the real estate at the time of the taking. As the petitioners had no such rights, there must be in the first case, under the terms of the report, a judgment for the respondent, and in the second case a like judgment must be affirmed. So ordered.

(182 Mass. 387)

O'CONNOR v. BRIGGS et al. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 6, 1903.)

SERVANT-CONTRACT OF EMPLOYMENT-RENEWAL EVIDENCE.

1. Where a servant receives injuries which render him entirely incapable of performing the services required of him by his contract, both parties to the contract are absolved from liability to continue performance.

2. A servant at the expiration of his term of employment was confined in a hospital, unable to perform any services; and in an action by him against the master on the ground that he had, by implication, been hired for another term, there was some evidence that the master conferred with him, while he was in the hospital, in regard to the collection of certain bills for goods sold by him. Held not to warrant a finding that the relations of the parties were continued while he was disabled.

3. After the servant left the hospital, he worked a little about defendant's store, but he had previously been a traveling salesman for defendant. There was no evidence that after his return he ever undertook any work as a traveling salesman, or that he ever secured an order or collected any money, although he saw some customers, who were delinquent, about their business, and there were subsequently some negotiations in regard to making a contract for services on a commission basis. Held, that no renewal of the contract was shown.

Exceptions from superior court, Suffolk county; Albert Mason, Judge.

Action by John J. O'Connor against Jacob Briggs and others. There was a judgment for defendants, and plaintiff brings exceptions. Exceptions overruled.

§ 27.

1. See Master and Servant, vol. 34, Cent. Dig.