Harding v. Inhabitants of Medway, 51 Mass. 465

Harding v. Inhabitants of Medway

51 Mass. 465 | Mass. | 1845

Hubbard, J.

The respondents moved to set aside the ver *469diet rendered in this case, on two grounds; 1st, that the application for a jury was premature, under St. 1842, c. 86, § 1, until the right to recover damages had become fixed and certain ; 2d, that the damages assessed were excessive. - In answer to the first objection the petitioner says that said statute is, by its terms, confined to highways or ways from town to town, and that town ways stand precisely as they did before that statute was passed.

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 *470relieve towns, in certain specified cases before the county commissioners, from the payment of damages for lands over which a way should be located, until the same should be taken possession of for the purpose of constructing the way; and to regulate the doings of the county commissioners therein. And it was, no doubt, enacted in consequence of the decision in the case of Harrington v. County Commissioners of Berkshire, 22 Pick. 263, where damages were allowed to a land owner, though the road was discontinued soon after its location, and before the land was entered upon. In the present case, the mischief intended to be prevented by the statute may as often occur in the case of town ways as of county ways, and the remedy provided is equally applicable to both. And we are of opinion, that the statute is not to receive so limited a construction as is contended for by the petitioner, but that the term “ highway,” in this statute, is so far used in a popular sense, as to extend to travelled ways, in relation to which the county commissioners are called upon, under its provisions, to direct or adjudicate.

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 *471giving a construction to St. 1842, c. 86, we are of opinion that the power of the commissioners is not thereby restricted to highways, in the limited meaning of that term, in estimating damages or in directing a jury for that purpose, but is to be exercised in the same manner as is provided for in the revised statutes in pari materia ; thus bringing the case at bar within the purview of the statute.

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.