In the opinion of the court this verdict must be set aside, upon various grounds of objection to the rulings of the sheriff.
1. The order of the county commissioners in making the location, containing the following provision, “As a corner of said Willard Brown’s house comes within the location of Orange Street as herein described, the location is made with the understanding that the said Brown is to have the privilege to have his house remain as it is, and not to be required to remove it until he, his heirs or assigns have occasion to rebuild or remove it, and no longer,” does not prevent the petitioner from claiming damages for the necessary expense of removing said house, if rendered expedient by reason of such location, or for the injury to the same occasioned by the location of the road. So far as the location of this road embraced any part of this house, it was an absolute location, and might be treated as such by the peti
2. The ruling of the sheriff excluding the testimony of Woodworth, as to the expense that would be incurred by a removal of such house from the limits of the newly located road, was also erroneous.
3. The deeds to Whipple and Bartlett do not show that, by these conveyances, the petitioner had obligated himself to his grantees to surrender and yield up as a part of Orange Street all that portion of his land covered by the location of this way, or that they are entitled to have a line extended to Park Street, cutting off four feet of Brown’s land, and widening the street to that extent.
4. The testimony of Stephen Bartlett, as to the declaration óf the petitioner when speaking of the strip of land on the east side of Orange Street, “ I shall not now throw it out, but I shall eventually throw it out all the way,” does not show a dedication of this land to the public; nor does the testimony of James A. Whipple establish any such dedication.
5. As a matter of cross-examination, it was competent for the petitioner to ask a witness called by the respondents to testify to the value of the petitioner’s land, what was the value of the land on the west side of Orange Street, although the jury might not before have had their attention directed to the land on that side of the street.
It may be proper to add, in reference to the future hearing, that it was competent for the defendants to submit to the jury any proper evidence tending to show that the petitioner had, prior to the location of the road and with a view of securing the same, waived all claim for damages to his land and buildings occasioned by such location. This must be shown affirmatively by those who rely upon it as a bar to all claim for damages.
Verdict set aside.