land whatever material was necessary and convenient for re pairing Elm Street and South Street, at places within his jurisdiction.

But the judge ruled that it was a question for the jury, whether or not the defendant, in his capacity of highway surveyor, was doing the acts and removing the earth on the high way opposite the plaintiff's land for the purpose of making repairs on that portion of the highway; and that if he was not, but was there solely for the purpose of getting material to remove to Elm Street and South Street, for the purpose of making repairs there, he could not justify under his authority as surveyor.

The jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which were argued by the same counsel in 1877.

GRAY, C. J. As stated by Chief Justice Parker, in the passage which is made the foundation of the learned argument for the plaintiff, "It is too clear to require any discussion, that the proprietor of land, over which a public highway has been laid, retains his right in the soil for all purposes which are consistent with the full enjoyment of the easement acquired by the public or by any corporation by authority derived constitutionally from the Legislature." Tucker v. Tower, 9 Pick. 109, 110.

The owner of the land therefore retains his title in trees, grass, growing crops, buildings and fences standing in the highway at the time of the laying out, (unless he fails to remove them within a reasonable time after notice to do so,) as well as in any mines or quarries beneath, which are not part of the surface of the earth upon and of which the highway is made. Gen. Sts. c. 43, §§ 13, 39. Goodtitle v. Alker, 1 Kenyon, 427, 437; S. C. 1 Burr. 133, 143. Adams v. Emerson, 6 Pick. 57. Commonwealth v. Noxon, 121 Mass. 42. Tucker v. Eldred, 6 R. I. 404. Overman v. May, 35 Iowa, 89. The decision in Smith v. Rome, 19 Georgia, 89, cited for the plaintiff, unless it can be considered as substantially a case of a quarry, cannot be upheld. Dillon Mun. Corp. (2d ed.) § 544, note.

But it is equally clear that the grant of such an easement to the public, or to the corporation to which its rights have been delegated, authorizes the doing of any act in the highway, including the digging down or raising the soil to any extent, that

is necessary or proper to make and keep the way safe and convenient for the public travel. Callender v. Marsh, 1 Pick. 418. Smith v. Washington, 20 How. 135. Boston v. Richardson, 13 Allen, 146, 159. Pontiac v. Carter, 32 Mich. 164. All acts done for the purpose of repairing the way are of this character, although they may require the removal of the soil from one part of the way to another; and it is accordingly well settled that the public in the case of a highway, or a turnpike corporation or a railroad company in the case of a turnpike or railroad, has the right, acting through proper officers, for the purpose of repairing the same highway, turnpike or railroad, to take earth, gravel or stones from one part and deposit them on another, although if the officer applies them to other uses he may become liable as a trespasser.

In Adams v. Emerson, for instance, in which an action was maintained by the owner of land over which a turnpike road had been laid out, against a servant of the corporation, for taking the herbage growing thereon, Mr. Justice Wilde, delivering the opinion of the court, said, "The locus in quo, although part of a turnpike road, is the soil and freehold of the plaintiff. He has the exclusive right of property in the land, subject however to the easement or rights incident to a public highway, such as the right of passage over it, and the right which the turnpike corporation has to construct a convenient pathway, and to keep it always in good repair. To accomplish these purposes, the corporation may dig up and remove from place to place, within the limits laid out for the road, any earth, sand and gravel, and may dig or cut up sods and turf." 6 Pick. 58. See also Phillips v. Bowers, 7 Gray, 21, 26; Burr v. Leicester, 121 Mass. 241; Jackson v. Hathaway, 15 Johns. 447, 453; Fish v. Mayor &c. of Rochester, 6 Paige, 268, 272; Bissell v. Collins, 28 Mich. 277; Baxter v. Winooski Turnpike, 22 Vt. 114; Cole v. Drew, 44 Vt. 49; Chapin v. Sullivan Railroad, 39 N. H. 564; Aldrich v. Drury, 8 R. I. 554.

In New England, at least, the same rule nas peen applied by law and usage to the taking of materials from one highway for the repair of another within the jurisdiction of the same municipal authorities. Hovey v. Mayo, 43 Maine, 322. New Haven v. Sargent, 38 Conn. 50. In such a case, both highways must,

for this purpose, be deemed as much parts of one plan of public improvement for the accommodation of the public travel, as if they formed parts of a continuous line of road called by one name, as in the case of a turnpike or of a railroad. In Delphi v. Evans, 36 Ind. 90, to which the plaintiff has referred us, although there are dicta inconsistent with this view, the decision appears to have been based upon the want of any such order of the city council as was required by statute.

The office of surveyor of highways existed in England long before the settlement of Massachusetts. The St. of 2 & 3 P. & M. c. 8, required surveyors to be chosen in each parish, and the parishioners to work on the highways four days in each year under their supervision. The St. of 5 Eliz. c. 13, recited, as a defect in the previous statute, "that such substance and matter as is most fit and convenient for the reparations of the said ways cannot be lawfully had, fetched and taken out of the several grounds and soil thereunto nigh or adjoining;" and therefore enacted that the surveyors, "for the better reparation and amendment of the ways within their several parishes and limits," might, "if it shall be to them so thought necessary," take broken stones or rubbish already dug in private quarries, and for want thereof dig gravel, sand or cinder, in the several grounds (except houses, gardens, orchards or meadows) of any person within the parish, "and nigh adjoining to the way or ways wherein such reparations shall be thought necessary to be made," and likewise "gather stones lying upon any lands or grounds within the parish, and meet to be used for such service and purpose, and thereof to take and carry away so much as by discretion of the said supervisors shall be thought necessary to be employed in the amendment of the said highways." Those statutes, with some temporary modifications, continued in force until near the time of the American Revolution, and were then superseded by other statutes containing similar provisions. Com. Dig. Chimin, C. 4. Sts. 14 Car. II. c. 6; 7 Geo. III. . 42; 13 Geo. III. c. 78.

In Massachusetts, surveyors of highways were authorized to be chosen in each town by some of the earliest acts of the Colony and of the Province. Col. St. March 3, 1635-6; 1 Mass. Col. Rec. 172. Prev. St. 1692-3 (4 W. & M.) c. 23, § 4; 1

Prov. Laws (State ed.) 65. Anc. Chart. 195, 248. No colonial or provincial statute specified their duties, until the highway act of 1693-4 (5 W. & M.) c. 6, § 1, declared that the surveyors of highways in each town should "take care that all highways, private ways, causeys and bridges, lying within the precincts of such town, be kept in repair, and amended from time to time, when and so often as shall be needful; " and should be empowered, among other things, "to dig for stone or gravel, clay, marl, sand or earth, in any land not planted or enclosed." 1 Prov. Laws, 136; Anc. Chart. 267.

An early statute of the Commonwealth in like manner authorized surveyors of highways "to dig for stone, gravel, clay, marl, sand or earth, in any land not planted or enclosed, and the materials, thus dug up, to remove to such place or places in the highways, for the repair and amendment thereof, as they shall determine necessary." St. 1786, c. 81, § 1. The object of this provision, as of the corresponding ones in the statutes of England and of the Province, manifestly was to grant the power of taking materials for the repair of highways from private lands not within their limits. This is made even more clear by the form in which it was reported by the commissioners on the Re vised Statutes, namely, "to dig in any adjoining land not culti vated or enclosed," &c. Report of Commissioners on Rev. Sts. c. 25, § 3. It doubtless recognizes or implies, but, in strict accuracy and having regard to the history of the statute law upon the subject, it cannot be asserted (as when, having no occasion to examine this point critically, it was said in Callender v. Marsh, 1 Pick. 427) that it "gives the power to take from any hill in the road the material necessary for filling up any part of it which requires raising." The omission of this provision, therefore, by the Legislature, in the Revised Statutes of 1836, does not impair the authority of a surveyor of highways to remove earth and gravel from one highway or part of a highway to another within his jurisdiction, which had in all the earlier statutes been assumed to be so incident to his office and duty as to need no express affirmance or mention.

Nor is the authority of the surveyor in this respect diminished by the Gen. Sts. c. 44, § 19, reënacting the Rev. Sts. c. 25, § 6 and providing that "when an owner of land adjoining a highway

or town way sustains damage in his property, by reason of any raising, lowering or other act, done for the purpose of repairing such way, he shall have compensation therefor," to be deter mined as therein provided. This statute does not affect the extent of the authority of the public and its officers, or the principle upon which that authority rests. It only affords additional compensation in such cases as come within it; and, whether it must be strictly limited to acts done for the purpose of repairing the particular highway or town way adjoining the land of the petitioner, or may be liberally construed as a remedial statute so as to include acts done in the way adjoining his land for the purpose of repairing a highway or town way elsewhere, it does not make any act of the town or its officers a tort which would not have been so before. Elder v. Bemis, 2 Met. 599, 604. Brown v. Lowell, 8 Met. 172, 176. Brainard v. Clapp, 10 Cush. 6, 9.

The acts of the defendant, in removing earth and gravel from a highway within the limits of his jurisdiction as a surveyor, and opposite the plaintiff's land, were apparently within the scope of the defendant's official duty; his judgment exercised at the time of doing them was conclusive upon the question whether they were necessary for the purpose of repairing the highways, either at the place from which they were taken, or at the other places within his jurisdiction where they were afterwards deposited by him; and the plaintiff had no other remedy, for any injury to his land in consequence of such acts, than under the Gen. Sts. c. 44, § 19. Benjamin v. Wheeler, 8 Gray, 409, and 15 Gray, 186. Bay State Brick Co. v. Foster, 115 Mass. 431. Morrison v. Howe, 120 Mass. 565. Burr v. Leicester, 121 Mass. 241.

To submit to a jury, in an action of tort against a surveyor, the question whether he in fact did the acts complained of for the purpose of making repairs, when those acts appear to be suit able for that purpose, is substantially equivalent to trying the questions of the necessity of the repairs and the motives and good faith of the surveyor, which, as has already been decided, at a former stage of this case, cannot be done.

For these reasons, we are all of opinion that upon both the questions raised at the trial the defendant's positions were well taken, and the instructions given to the jury were erroneous. Exceptions sustained.