51 Mass. 465 | Mass. | 1845
The respondents moved to set aside the ver
The word “ highway ” is a term applicable to all great roads, leading from town to town, to markets and to public places, and denotes a way that is common to all passengers. But it is also especially used, in our statutes, as applicable to county roads or roads leading from place to place, in distinction from town or private ways, as to which the provisions are different in several. respects. But though it is thus specifically applied, yet when used in a popular sense it includes all public travelled ways, whether county or town. The meaning of the term “ highway ” was fully discussed by this court, in Jones v. Inhabitants of Andover, 6 Pick. 59, which was a case similar in principle to the present, though wholly unlike in its circumstances; and the court there held, “ that the legislature, in providing a remedy suitable for all cases of damage happening from culpable neglect in parties obliged by law to maintain .roads, did not use the term “ highway ” in the straitened sense supposed, which would leave the citizens without remedy, but in the general, popular sense, including certainly town ways, which, though of inferior importance to county roads, are yet public in their use, and may not improperly be termed highways.” See also Commonwealth v. Hubbard, 24 Pick. 98. In that case the court say, (in giving a construction to an indictment in which the terms “ town way ” and “ highway ” were used as applicable to the same way,) “ the change of the expression from town way into highway implies no absurdity or contradiction. Every town way is a highway for most purposes, and may be described as such in an indictment.”
The object of the statute now under consideration was, to
The first section of St. 1842, c. 86, refers to the doings of the commissioners in estimating damages and making a return ■ thereof, in pursuance of § 11, of c. 24 of the Rev. Sts. That section provides that the commissioners' shall estimate the amount of damage, and shall state the share of each person separately; and by <§> 13, any person aggrieved by their doings • may, on application to them by petition, have his damages settled by a jury. And in respect to town and private ways, by <§> 68, any person who is aggrieved by the determination of the selectmen, as to the amount of compensation allowed, may, upon application to the commissioners, have his damages ascertained by a jury, in like manner as is provided in respect to the recovery of damages for laying out highways. And so by <§> 71, if the selectmen shall refuse or neglect to lay out a town or private way, the person aggrieved may apply to the commissioners to lay out the way and estimate the damages occasioned thereby. The powers of the commissioners extend alike to highways, town ways, and private ways; and in
But we do not think, as contended for by the respondents, that the ascertaining of the damages was premature. ' By the laying out of the road, the rights and liabilities of the parties had commenced; and the petitioner declared himself to be aggrieved. The time allowed to a person aggrieved for calling a jury is one year after the laying out. Rev. Sts. c. 24, <§> 76 ; and this laying out of the road, and not the opening or working on it, is the act establishing the road. The party, therefore, is not required to wait till the road is begun to be worked upon, but may have his jury, as provided, and his damages assessed, after the laying out. But the intention and effect of St. 1842, c. 86, are, to suspend the issuing of the order for the payment of the damages, until the land is taken possession of for the purpose of constructing the highway or making the proposed alteration. It is like a judgment in an action at common law, with a stay of execution.
In regard to the motion for setting aside the verdict because the damages were excessive, we have no doubt of the right of the court of common pleas to set aside a verdict for that cause as well as for any other good cause shown.
The exceptions are sustained, and the cause is remitted to the court of common pleas for further proceedings.