Keith v. City of Brockton

Massachusetts Supreme Judicial Court

Keith v. City of Brockton

18 N.E. 585, 147 Mass. 618, 1888 Mass. LEXIS 179

CourtMassachusetts Supreme Judicial Court

DecidedNovember 27, 1888

StatusPublished

Cited by2 cases

This text of 18 N.E. 585 (Keith v. City of Brockton) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Keith v. City of Brockton, 18 N.E. 585, 147 Mass. 618, 1888 Mass. LEXIS 179 (Mass. 1888).

Pincite

Opinion

C. Allen, J.

The order passed by the city council was not for the laying out, alteration, or discontinuance of the way, but it was for specific repairs thereof, by changing the grade according to a plan which was referred to (Sisson v. New Bedford, 137 Mass. 255) ; and according to the general rule in such case, the application by a party aggrieved for a jury must be made within one year after such order is passed. Pub. Sts. c. 49, § 79. But the petitioner contends that he is entitled to an extension of time under the provisions of § 89 of the same chapter. This latter section was founded upon the St. of 1874, c. 341, § 1, which clearly did not include the.case of specific repairs, but was limited to the case of “ damages sustained by the laying out, widening, altering, relocating, or discontinuance ” of a way.

When this section was incorporated into the Public Statutes, in § 89, above referred to, it was expressed as follows: “ A person aggrieved by the indemnity awarded to him, or by the assessment of his damages under this chapter, who omits to file his petition for a jury within one year, and who has not received, [620]*620at least sixty days before the expiration of such year, actual notice of the proceedings whereby he is entitled to such damage or indemnity, may within six months after his land is actually entered upon for the construction or alteration of a way, or after the actual closing of a way upon discontinuance, file his petition for the assessment of his damages by a jury,” etc. Now, the words “ under this chapter,” near the beginning of this section, would be broad enough to include an assessment of damages for specific repairs; but the later portion of the section shows that only cases of damages by the construction or alteration or discontinuance of a way are intended to be included, because the petition must be filed within six months after his land is actually entered upon for those purposes.

There was no intention of changing the law as it already existed, or of extending the provisions of the St. of 1874, c. 841, § 1, so as to make them include a case of specific repairs.

Petition dismissed.

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C. Allen, J.

The order passed by the city council was not for the laying out, alteration, or discontinuance of the way, but it was for specific repairs thereof, by changing the grade according to a plan which was referred to (Sisson v. New Bedford, 137 Mass. 255) ; and according to the general rule in such case, the application by a party aggrieved for a jury must be made within one year after such order is passed. Pub. Sts. c. 49, § 79. But the petitioner contends that he is entitled to an extension of time under the provisions of § 89 of the same chapter. This latter section was founded upon the St. of 1874, c. 341, § 1, which clearly did not include the.case of specific repairs, but was limited to the case of “ damages sustained by the laying out, widening, altering, relocating, or discontinuance ” of a way.

When this section was incorporated into the Public Statutes, in § 89, above referred to, it was expressed as follows: “ A person aggrieved by the indemnity awarded to him, or by the assessment of his damages under this chapter, who omits to file his petition for a jury within one year, and who has not received, [620]*620at least sixty days before the expiration of such year, actual notice of the proceedings whereby he is entitled to such damage or indemnity, may within six months after his land is actually entered upon for the construction or alteration of a way, or after the actual closing of a way upon discontinuance, file his petition for the assessment of his damages by a jury,” etc. Now, the words “ under this chapter,” near the beginning of this section, would be broad enough to include an assessment of damages for specific repairs; but the later portion of the section shows that only cases of damages by the construction or alteration or discontinuance of a way are intended to be included, because the petition must be filed within six months after his land is actually entered upon for those purposes.

There was no intention of changing the law as it already existed, or of extending the provisions of the St. of 1874, c. 841, § 1, so as to make them include a case of specific repairs.

Petition dismissed.

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Bluebook (online)

18 N.E. 585, 147 Mass. 618, 1888 Mass. LEXIS 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keith-v-city-of-brockton-mass-1888.

Opinion

C. Allen, J.

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