120 Mass. 416 | Mass. | 1876
Under a petition for damages occasioned by the laying out of a highway, the petitioner may recover not only the value of his land actually taken, but also the damages to his remaining land on account of all changes in the surface of that which is taken, which were necessary to its original construction as a public street. Snow v. Provincetown, 109 Mass. 123. Ryan v. Boston, 118 Mass. 248. The petition for damages occasioned by the laying out must be brought within one year after the order so to do. Gen. Sts. c. 43, § 22. If, however, when such petition came on to be heard, the construction as originally proposed should not have been completed, it would of course be within the discretion of the court to postpone the case if the damages could not then conveniently be ascertained.
If, after the way is laid out as a highway or public street, the public authorities order a change in its grade, the landowner is entitled to apply for damages under the Gen. Sts. c. 44, §§ 19, 20, by reason of the “ raising, lowering or other act done for the purpose of repairing such way,” and can file his petition within one year after the completion of the work. Barker v. Taunton, 119 Mass. 392. These sections of the statutes presuppose the existence of a public way in which such changes are made, damages for the laying out of which it must be presumed have once been paid. The learned judge was therefore in error in ruling that, if the raising of the grade of Lincoln Street was a part of the original construction of the way, the petitioner might maintain his petition if he commenced it within one year after the completion of the work. Such petition should have been commenced within one year after the laying out, and under this he could have recovered all the damages to which he was entitled by reason of the grade fixed on the original construction of the street. If the petitioner were permitted to recover damages for the laying out of the street, and, in addition thereto, damages for the filling necessary for its original construction, he would recover twice for the same injury. Exceptions sustained.
