Willard v. City of Boston

Massachusetts Supreme Judicial Court

Willard v. City of Boston

21 N.E. 298, 149 Mass. 176, 1889 Mass. LEXIS 141

CourtMassachusetts Supreme Judicial Court

DecidedMay 9, 1889

StatusPublished

Cited by7 cases

This text of 21 N.E. 298 (Willard v. City of Boston) 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

Willard v. City of Boston, 21 N.E. 298, 149 Mass. 176, 1889 Mass. LEXIS 141 (Mass. 1889).

Pincite

Opinion

Morton, C. J.

This is a petition under chapter 49 of the Public Statutes, for the assessment of damages for land taken for a highway. The only question argued is whether the proceedings upon it should be conducted under § 18 of that chapter, or under § 20 and the following sections. This question is not properly before us on a motion to dismiss the petition. The allegation in the petition that § 18 of the statute is applicable to the case is not an allegation of a substantive fact which would prevent the court from entertaining the petition, although it might hold that the subsequent proceedings should be conducted under § 20. If, as was stated at the argument, a prior petition has been filed by one of the parties in interest, the defendant should avail itself of this fact by an answer in the nature of a plea in abatement. It does not therefore appear upon the record before us, and we cannot regard it as a fact. The petition is sufficient, and, upon the record transmitted to us, the order dismissing it was erroneous. If this was merely a technical objection, and we were duly informed of all the facts in the case, we should be inclined to overlook it. But the question whether the proceedings shall be according to § 18 or according to § 20 must depend upon the state of facts shown to exist when the jury is impanelled. Perhaps we might assume that the petition correctly states the title to the land taken. But as to the mortgage, the effect of which presents the most difficult question in the case, there is not a sufficient statement. It is merely stated that there is a mortgage of an undivided half, dated July 2, 1883. It does not appear whether it is a mortgage to secure a sum of money lent, or to secure some future contingent liability; whether there has been a breach of [179]*179the condition; whether the mortgagee is or is not in possession ; nor whether the mortgagee intends to appear as a party, or, as was intimated at the argument, intends to waive his rights. It will be settled at the hearing in the Superior Court what the facts are. Until they are settled, we cannot know what questions of law will be raised. We are not called upon to decide speculative questions, or to determine what are the rights of parties under all possible facts, but only to determine their rights under the facts which actually exist in a case.

The motion to dismiss must be overruled, and the case must stand for further proceedings in the Superior Court.

Motion to dismiss overruled.

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Morton, C. J.

This is a petition under chapter 49 of the Public Statutes, for the assessment of damages for land taken for a highway. The only question argued is whether the proceedings upon it should be conducted under § 18 of that chapter, or under § 20 and the following sections. This question is not properly before us on a motion to dismiss the petition. The allegation in the petition that § 18 of the statute is applicable to the case is not an allegation of a substantive fact which would prevent the court from entertaining the petition, although it might hold that the subsequent proceedings should be conducted under § 20. If, as was stated at the argument, a prior petition has been filed by one of the parties in interest, the defendant should avail itself of this fact by an answer in the nature of a plea in abatement. It does not therefore appear upon the record before us, and we cannot regard it as a fact. The petition is sufficient, and, upon the record transmitted to us, the order dismissing it was erroneous. If this was merely a technical objection, and we were duly informed of all the facts in the case, we should be inclined to overlook it. But the question whether the proceedings shall be according to § 18 or according to § 20 must depend upon the state of facts shown to exist when the jury is impanelled. Perhaps we might assume that the petition correctly states the title to the land taken. But as to the mortgage, the effect of which presents the most difficult question in the case, there is not a sufficient statement. It is merely stated that there is a mortgage of an undivided half, dated July 2, 1883. It does not appear whether it is a mortgage to secure a sum of money lent, or to secure some future contingent liability; whether there has been a breach of [179]*179the condition; whether the mortgagee is or is not in possession ; nor whether the mortgagee intends to appear as a party, or, as was intimated at the argument, intends to waive his rights. It will be settled at the hearing in the Superior Court what the facts are. Until they are settled, we cannot know what questions of law will be raised. We are not called upon to decide speculative questions, or to determine what are the rights of parties under all possible facts, but only to determine their rights under the facts which actually exist in a case.

The motion to dismiss must be overruled, and the case must stand for further proceedings in the Superior Court.

Motion to dismiss overruled.

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Bluebook (online)

21 N.E. 298, 149 Mass. 176, 1889 Mass. LEXIS 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willard-v-city-of-boston-mass-1889.

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