Brock v. Old Colony Railroad

15 N.E. 555, 146 Mass. 194, 1888 Mass. LEXIS 224

• Court: Massachusetts Supreme Judicial Court
• Decided: February 29, 1888
• Status: Published

Opinion

Holmes, J.

The location identified the land, and therefore satisfied the Rev. Sts. c. 39, § 75. Filing it was sufficient notice of the taking. Woodbury v. Marblehead Water Co. 145 Mass. 509. Grand Junction Railroad v. County Commissioners, 14 Gray, 553, 564. As pointed out by the tenant, it must be presumed that the demandant was notified of the petition for authority to take, as required by the Rev. Sts. c. 39, §§ 46-48. The authority and its limits are contained in the charter, St. 1854, c. 55, and acts referred to. It would be impracticable to make the validity of the taking depend upon notifying all owners personally by name, and in proceedings in rem of this sort it is not necessary. In view of the above decisions, we do not think it requisite to do more than cite a few cases from other States, which sustain or go beyond our opinion. Johnson v. Joliet & Chicago Railroad, 23 Ill. 202. Cupp v. Commissioners of Seneca County, 19 Ohio St. 173. Stewart v. Board of Police, 25 Miss. 479. Wilson v. Hathaway, 42 Iowa, 173, 176. Owners of Ground v. Albany, 15 Wend. 374. George’s Creek Coal Co. v. New Central Coal Co. 40 Md. 425, 438.

It should be added, that the agreed facts do not warrant the assumption of the demandant in his argument that the names of other owners did appear in the location and plan in such a way as naturally to mislead him into the assumption that no part of his land was included.

The objection that the demandant was not furnished a plan is pretty nearly disposed of by Abbott v. New York f New England Railroad, 145 Mass. 450. The fact that the land in controversy belonged to a different person from the owner of the adjoining land actually used by the railroad, whether or not it might be important under other circumstances, is not so in this case. The failure to furnish a plan did not affect the tenant’s title, (145 Mass. 451,) nor suspend the running pf the .time for applying for damages, which has long gone by. Rev. Sts. c. 39, § 58. Charlestown Branch Railroad v. County Commissioners, 7 Met. 78. Hazen v. Boston & Maine Railroad, 2 Gray, 574, 580, Meriam v. Brown, 128 Mass. 391, 393. The right of the demandant now to require a plan, if it exists, is a naked right of no practical use, and does not entitle him to recover in this action. Judgment affirmed.