122 Mass. 110 | Mass. | 1877
The certificate of the presiding officer at the trial before the sheriff’s jury brings before us the objections and exceptions to his rulings in seven distinct cases, tried together. While all are not applicable to each case, they may without difficulty be here discussed.
I. The respondent objects to the ruling that “the petitions can be maintained under one or the other of chapters 43 and 44 of the Gen. Sts., and the amendments thereto or substitutes therefor.”
The local legislation in relation to the powers of the city council of Springfield as to highways, whether such legislation
In Bennett v. Worcester, 4 Gray, 359, while the point is not discussed nor decided, an alteration in the grade of a way is treated, in the opinion of Chief Justice Shaw, as an alteration of a way, such as that for which damages are provided by the Rev. Sts. c. 24, § 68.
That it was contemplated by the Legislature that the power to change the grade of a street had been given by the Gen. Sts. c. 43, and also that the city council of Springfield possessed this power, are sufficiently shown by the St. of 1872, c. 334, § 4, by
As it is not disputed that the rule of damages is the same under the Gen. Sts. c. 43, or amendments thereto or substitutes therefor, as mider c. 44, we have no occasion to consider whether these petitions could also have been maintained under the latter chapter.
2. The question put at the trial to Mattoon does not fairly admit of the interpretation that the respondent would give to it. It was not an inquiry, what was the damage to those estates abutting on Chestnut Street or Lyman Street, if the whole damage from cutting down both streets was included •, but called the attention of the witness to the damage proceeding from the cutting down of Lyman Street, irrespective of any which the estates might have sustained from the cutting down of Chestnut Street. That it was thus understood by the witness appears by his reply, which limits his estimate of damages to the front upon Lyman Street.
3. ' The question, “ how much it would cost to erect a protecting wall on the Bemis property on Lyman Street,” is not shown to have been incompetent. While the damages to a petitioner are not to be measured by the cost of the improvements or changes which he may think desirable in order to adapt his estate to the new condition of the street, yet, in connection with evidence that such a wall was necessary, or that it was a reason able and economical mode of obviating the difficulty occasioned by the change of grade, such evidence might be competent, and it does not appear by the exception but that it was introduced in such connection.
4. The question addressed to the witness Parsons on cross-examination was properly allowed. It tested the judgment of the witness, and it directly tended to show that the cutting down of Lyman Street, independently of the fact that Chestnut Street was cut down, was an injury to the estates of some of the petitioners.
5. The evidence as to the amount of damages which had been assessed in favor of and paid to Mattoon and another and Bemis by reason of the cutting down of Chestnut Street, was also rightly
6. The respondent objects to the sixth instruction, which has in reference alone to the petitions of Mattoon and another, of Phelps, of Mayo, and of Mayo- and another. By it the jury were informed that “ the only effect ” of the location of the Springfield, Athol and Northeastern Railroad upon the lands of the petitioners was to give the railroad corporation a right to take and use the lands for railroad purposes within the limits of its location, paying damages therefor. But the location had the additional effect to give the petitioners, as soon as it was made and of the date when it was made, a right to damages for that which was taken by the location. Gen. Sts. c. 63, §§ 21, 22. Hazen v. Boston & Maine Railroad, 2 Gray, 574. That for which the petitioners would be entitled to claim damages was, although technically an easement, a right thus acquired by the corporation to a use of the land, permanent in its nature and practically exclusive.
The omission to inform the jury of this effect was not unimportant. The location of the railroad was filed on March 20, 1874, and the order to change the grade of Lyman Street, by which the petitioners alleged that their land was injured, was passed on August 24, 1874. When the damages of the petitioners as against the railroad corporation were assessed, the value of the property, in which it acquired an easement, would be estimated, unaffected by any injury from the cutting down of, Lyman Street. How much would have been deemed by the jury in such a case the value of the fee which would have been left to the petitioners, when their estates were subjected to this servitude, we cannot determine. It may well have been merely
As to those petitions which would be affected by the ruling which we deem erroneous the verdict should be set aside, while as to the others it should be accepted. Nor is there any difficulty in doing this, although the verdict as to all is upon a single paper; it is distinct and separable as to each petitioner. The petitioner Mayo owned lands which would, and others which would not, have been affected by this ruling; but as the verdict for him was in a single sum, it must be set aside, as it cannot be ascertained to how great an extent it was influenced by the ruling thus made.
The result is, that as to the petitions of Mattoon and another, of Phelps, of Mayo, and of Mayo and another, the verdicts are set aside; as to those of Bemis and another, executors, of Hines and of Morrissey, the verdicts are accepted.
Judgments accordingly.