Castle v. County of Berkshire

77 Mass. 26

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1858
• Status: Published

Opinion

Thomas, J.

This is a complaint on the Rev. Sts. c. 24, for damages for the discontinuance of a highway. A warrant was issued and a trial had before a sheriff’s jury. A verdict was returned for the petitioners, and the case is before us upon exceptions to the ruling of the sheriff who presided at the trial.

The petitioners had no land abutting upon the highway discontinued. After such way was discontinued their farm and lands were accessible by other ways.

These facts appearing, the sheriff was requested to instruct the jury, “ that the petitioners were not entitled in law to prove and recover damages, if no part of the petitioners’ land touched or abutted upon any part of the highway discontinued ; and if their farm or land was accessible by that part of the highway not discontinued, or by any other public road.”

We think the instructions prayed for should have been given. Their correctness is settled by the authority of Smith v. Boston, 7 Cush. 254. Doubtless the discontinuance of a way may indirectly affect the property of persons whose estates are not bounded upon the highway, but such damage is contingent, remote and indefinite.

The sheriff merely quoted to the jury the provision of the statute; but what was asked for was a practical rule applicable to the case before him.

Judgment of the court of common pleas setting aside the verdict affirmed.