Thayer v. County Commissioners

64 Mass. 151

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1852
• Status: Published

Opinion

Dewey, J.

Exceptions to the form of the petition and the want of more precise description of the land, and the interest of the petitioners therein, in an application for a jury to assess damages for land taken for a highway, cannot be taken at this late stage of the proceedings. The application for a jury, such as it is, was made to the county commissioners, being the same body who as representatives, or legal agents of the county, now object to the acceptance of these verdicts. If in the view of the county commissioners the petition was not in proper form, they should have required amendments of the same, or rejected it as defective. Having acted upon it, and ordered a jury to hear and adjudicate thereon, we think they are not to interpose objections of form, to the acceptance of the verdict of the jury.

The exception taken to the apportionment of damages awarded to Ellis Thayer and his wife, cannot avail the respondents. If the party petitioning for the damages does lot object to the severance, it is immaterial to the county.

The verdict is sufficiently signed by the jury, as appears by the copy of the formal verdict returned. We perceive, therefore, no objections to the acceptance of the verdicts of the jury as to the damages awarded to Ellis Thayer and Peggy Thayer, for the location of the highway through then land, or that of Samuel D. Smith for damages to his land; and both these verdicts are accepted. As to the damages allowed by the jury to Ellis Thayer alone, for damages to his land, we think no cause was properly before them of a petition, or order for a jury to assess such damages. The cases presented in the petition and order for a jury, were those of claims for damages to lands of Ellis Thayer and Peggy Thayer his wife, and of Samuel D. Smith. The verdict assessing damages to Ellis Thayer for land held exclusively in his own right, was unauthorized, and upon a case not before the jury, and this ver diet is not accepted, but must be treated as a nullity.

Judgment accordingly.