Sturtevant v. County of Plymouth

53 Mass. 7

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1846
• Status: Published

Opinion

Shaw, C. J.

This is an appeal from the judgment of the court of common pleas, ordering a verdict to be recorded in favor of the complainant, being a verdict for damages assessed by a sheriff’s jury, on the occasion of laying out a highway over the complainant’s land, by the county commissioners. It appeared in evidence before the sheriff’s jury, that on laying out the highway over the complainant’s land, he had agreed with the commissioners to make no claim for damages, except some damage for removing his fences. By the charge given by the sheriff to the jury, the coiinty had the full benefit of this deduction; and we are to presume that nothing was allowed for the land. The respondents insist, however, that the effect of the agreement was, that the complainant should claim no damages, in the strict and proper sense of that term, to be assessed by a jury, but only to claim an allowance for moving his fences, at the discretion of the commissioners But we see no reason thus to construe the agreement. It was a waiver of all claim for damages, except for one item. But it left his claim unimpaired for that one item, and his remedy for recovering it, as if the residue had not been relinquished. Besides; if the commissioners had so understood the agreement, they would not have granted a warrant for a jury.

Exceptions overruled.