In considering whether the petitioner is entitled to the writ prayed for, it is to be determined what is the proper construction and legal effect of the vote and order of the city of Somerville of the date of .October 5-7, 1874. This vote the executors of the will of David A. Sanborn made the basis of a petition to the respondents, in which they prayed that a jury might be ordered to assess the damage done to such estate by the appropriation and taking of Sanborn’s land thereunder. If this vote is to be interpreted as an order for the laying out or widening of Prospect Street and thus for the taking of San-born’s land, it may be that such petition should have been granted. If it is to be deemed not as a laying out or widening, but an assertion by the city of Somerville of a right in the premises taken as a part of Prospect Street, and an order to remove obstructions in, or encroachments upon, this street, which it alleged Sanborn had made there, even if the assertion was erroneously made and the acts done under the order were wrongful, the remedy for the injury to Sanborn’s property was to be found by a different procedure.
The. vote in question is a direction to the committee on highways “ to cause all fences and structures belonging to abutters on Prospect Street, between Milk Street and Webster Avenue, encroaching upon the limits of said Prospect Street, as shown by a plan made by Loring K Horne during the year 1873, then city engineer, to be removed therefrom in fifteen days from the date hereof.” There is nothing here which indicates any intention to widen or alter Prospect Street, or to take any land outside of its limits. It is not averred in the petition of the executors, that any land was actually taken or entered upon outside these limits which the city government thus asserted to be those of the then existing street.
*295It is not necessary now to consider whether, if there had been an order to widen the street and land taken therefor, the landowners might waive the point that no notice had been given to them as required by the Gen. Sts. o. 43, § 61, and that none of the other steps required by that chapter had been taken, and might petition for a jury to assess their damages; but, in construing the order, it is important to observe that it was not preceded or accompanied by any of the proceedings which should have attended an order for widening a street.
The proceedings of the city of Somerville, previously and subsequently to this vote, are of consequence only in determining what was intended by it. On examining them, we do not find any vote or act, in which both branches concurred, which recognizes that the fences or structures removed or any lands taken were outside of the limits of the highway. There are reports of committees that -the fine of the street is indicated by the existing fences, but there is no assent to this by the city government. Upon a report of this character, accompanied by a recommendation that Prospect Street be widened to fifty feet, and, pending the discussion on its adoption, the order we have been considering was passed as a substitute.
The fact that the assessors, after this order, diminished the taxable area of Sanborn’s land is not important. In what they thus did, they acted as public officers, and their act in no way bound the city by any recognition that it had taken any of San-born’s land.
The lines of Prospect Street had been defined by an order of the county commissioners in January, 1863. The city of Somerville did not seek to change these lines, but proceeded to ascertain them, and its order was an assertion that the limits of the street were such as they appeared upon the plan which it caused to be prepared, and that fences and other structures within such limits were obstructions and encroachments. Whether the act of the county commissioners in 1863 had any validity, or whether for any reason the city could properly do that which it assumed to do, is not now to be determined. It is enough that the city has not undertaken to alter or widen this way, and that the landowners were not entitled to a jury to assess the damages occasioned thereby.
*296Assuming that it might he waived, there has yet been no waiver by the city, upon the facts before it, of the irregularity of this application for a jury. By its answer to the petition of the executors, it maintained that the county commissioners had no jurisdiction in the premises, denied that it had altered or widened Prospect Street, and asserted that the land alleged to have been taken and appropriated for this purpose had been long prior thereto a part of Prospect Street.
Writ of certiorari to issue.