Fuller v. County Commissioners of Plymouth

32 Mass. 81

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1833
• Status: Published

Opinion

This was a petition for a mandamus to the county commissioners of Plymouth county, to compel them to grant a jury to assess the damages sustained by the petitioner, by the laying out of a highway over his land. It appeared by the records of the commissioners, that he had waived his claim to greater damages than the commissioners had awarded to him. The fact of a waiver was denied by him, and he contended that a claim for damages in such a case could not be released except by a writing signed by the owner of the land. But the Court said, that although a right of way is an interest in real estate, yet that the taking of land for a highway is an act done by the commissioners pursuant to authority given them by statute, and the waiver of damages is a relinquishment, not of an interest in land, but of a pecuniary claim ; that this claim may be released by paroi before the commissioners and by an entry thereof on their records, and their records will be conclusive evidence of such release ; wherefore, in the present case, the commissioners were justified in refusing a jury, and the petition must be dismissed.