First Parish in Woburn v. County of Middlesex
73 Mass. 106
| Mass. | 1856
Metcalf, J.

We are of opinion that the instructions were correct, which the sheriff gave to the jury respecting the rights acquired by the petitioners under the grant made by the town in 1808. Those instructions conformed to the decision which was made, on much consideration, in the case of Lakin v. Ames, 10 Cush. 217, 218.

The true rule of damages, in most cases of this nature, is the diminution of the absolute value of the land-owner’s property, by the laying out of the highway, and not the diminution of its *109value for the specific use to which he had devoted it. In the present case, however, it does not appear that the petitioners have any right or title to the land in question, except for the site of a meeting-house and appurtenances. We therefore cannot decide that there was any error in the instruction to the jury, that the petitioners were entitled to compensation to the full extent to which their property was rendered less valuable for the use to which they had devoted it, by the laying out of the highway.

But we are of opinion that the anticipated annoyance of worshippers in the meeting-house, by the use of the highway on Sundays, by noisy and dissolute persons riding for pleasure, was no legal ground of damages. A jury, in assessing, damages, cannot legally act on the assumption that the land-owner will be annoyed by the unlawful acts of travellers. For the misinstruction on this point, the verdict must be set aside, and the case remanded to the county commissioners, with directions that a new warrant for a jury be issued.