These are petitions for the assessment by a jury of damages to the real estate of the petitioners caused by the relocation by the county commissioners of Sudbury Road in Concord.
The petition for the relocation was filed on February 14, 1910. A public hearing was held on April 4, 1910, and a relocation was decided upon. The bound stones were set during the summer of 1910 for a road forty feet wide, the old road having been only two rods wide. After the stones were set and before Christmas, 1910, the road commissioners of Concord at an expense of $342.80 caused sand to be dumped over the old perpendicular retaining walls of a causeway forming a part of the length of the old road so as to form slopes to support those walls which were to be used to carry a higher and wider causeway. The slopes and causeway covered the whole forty feet width of the relocated road. The order of relocation was made on December 28, 1910. In March and April, 1911, work costing about $234 was performed by the road department of Concord in restoring these slopes which had settled and become more or less washed away during the winter and in spreading upon them scrapings from the roads of the town so as to prevent further washing away.
“The road commissioners submitted to the town a printed report of their administration of the road department to March *2961, 1911. This report was accepted at the annual town meeting held in April, 1911. It contained this paragraph: ‘It cost $342.80 to widen Sudbury Road Causeway, filling on each side. The road was very narrow where it approaches Heath’s Bridge in both directions, and it was impossible, if not dangerous, for large teams to pass.’ ”
The question at issue between the parties is whether the respondent took possession of any part of the land included in the relocation in the spring of 1911, for the purpose of constructing the way. The facts are undisputed; there could be no issue of fact for the jury, and the respondent was entitled to a ruling of law upon the question whether the acts of the road commissioners did constitute such a taking of possession and such an entry as is contemplated under R. L. c. 48, § 92.
When the attending facts are considered and viewed in connection with the admitted fact that the road commissioners who put the street scrapings upon the slopes were the same public officers who widened the way eight feet and built the slopes thereto between the time of the decision of the county commissioners to relocate the way and the entry of its formal order and decree, we are of the opinion that the restoration of the slopes, washed away during the winter of and spring following their construction, was clearly an entry under the statute.
This conclusion finds support in the reasoning of Gardner, J., in Wilcox v. New Bedford, 140 Mass. 570, which, changing the date, reads: “The entry upon the land must be after the taldng, and not before; and, if the only possession taken by the city was before [December 28, 1910J when the extension was laid out, it will not avail the defendant. It would not be the act required by the statute, and would operate as ineffectually as if done after the lapse of the two years therein mentioned. Nevertheless, we think, if the city, in contemplation of laying out a street, and while legal proceedings therefor are in progress, takes possession of the land, and works thereon for the purpose of constructing the way, that these acts are not without significance. If, after the laying out, nothing more is done by the city within two years, then the previous possession taken and work done go for nothing. But such previous possession and work give some meaning to the possession taken by the city after the laying out, and, in view of such *297previous acts, less evidence would be required to show that the city, after the laying out, took possession for the purpose of constructing the way. These acts of the city, if found to be done before the laying out, for the purpose of constructing the way, give character and effect to the possession taken afterwards, and it can be seen, in the light of these previous entries upon the land and work thereon, for what the city afterwards took possession, whether for the purpose of constructing the way, or for other and foreign purposes. ”
It follows that the presiding judge should have ruled as contended by the respondent. And by the terms of the report, judgment is to be entered for the respondent in both cases.
So ordered.