Burt v. Brigham

117 Mass. 307, 1875 Mass. LEXIS 221

• Court: Massachusetts Supreme Judicial Court
• Decided: March 11, 1875
• Status: Published

Opinion

Wells, J.

The St. of 1873, c. 189, has two leading purposes: one to give the consent of the Commonwealth to the exercise of authority by Congress over the lands specified in the statute, in accordance with the provisions of the Constitution of the United States, art. 1, § 8; the other to secure to those whose lands should be appropriated, under the authority of Congress, adequate compensation therefor, the amount of which should be ascertained and determined in a manner substantially like that by which it is determined in cases of land taken and appropriated to public uses under the laws of this Commonwealth. Proceedings for the latter purpose are, of course, unnecessary if the parties agree upon terms of sale and purchase. The application to the court for a jury is therefore provided for only in case of failure so to agree.

The statute contains no indication as to the extent of negotiations or degree of effort, preceding the application, that may be required in order to entitle the petitioner to have an order for a jury; and makes no provision for the trial of any issue relating thereto. It clearly contemplates the trial of no question before the jury but that of the value of the estates taken.

The parties “ cannot agree upon the price ” if either chooses, however unreasonably, not to make nor accept any proposition therefor. By filing this application for a jury, the petitioner made and signified his election not to agree; and that meets the condition upon which the proceeding is to be entertained. The order dismissing the petitions because proper efforts to agree upon the price had not been made was therefore erroneous.

Exceptions sustained.