Hartshorn v. County of Worcester

113 Mass. 111

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1873
• Status: Published

Opinion

Colt, J.

It was insisted at the argument that no damages could be assessed in these proceedings, because no part of the petitioners’ lands were taken for the highway which was laid out over Chandler Street by the county commissioners. But each petition for a jury alleges, and the answer thereto admits, that the county commissioners laid out a new highway over Chandler Street. Each petition also alleges that the petitioner’s title extended to the central line of Chandler Street, and the allegations are neither admitted nor denied in the anwers. There is nothing in the record or the bill of exceptions to show that Chandler Street was already a public highway. And although it is stated in the exceptions that it appeared by the petitioners’ deeds that the north lines of their lots were the south line of Chandler Street, yet in the absence of any more distinct statement as to the petitioners’ alleged title to the centre of the street, we cannot infer that they had not by prescription, by possession or by some other deeds established a title to some part of the land taken for the new highway, so that they were parties aggrieved within the statute. The point does not appear to have been made at the trial and is not open upon the exceptions. State Lunatic Hospital v. County of Worcester, 1 Met. 437.

Estimates of the cost of proposed changes in the buildings and in the grade of the petitioners’ lands were properly admitted in evidence accompanied with and qualified by the instruction that such estimates were not to be considered unless the changes proposed were found to be the most reasonable and economical means to restore the value of the estates. It was a safe mode of ascertaining the actual damage, and was competent as affecting the alleged benefits to these estates. Plympton v. Woburn, 11 Gray, 415. Patterson v. Boston, 20 Pick. 159. Nor are the petitioners limited to the injury to their rights of lateral support, excluding the injury to their buildings. The rule which prevails in actions at common law between adjoining proprietors does not apply to this proceeding under the statute, which includes all damages to the owner’s property. Foley v. Wyeth, 2 Allen, 131.

Exceptions overruled.