13 Mass. App. Ct. 584 | Mass. App. Ct. | 1982
In this eminent domain action, the Commonwealth by its answer called into question the plaintiff’s title to the land taken. A judge who heard the case without a jury pursuant to G. L. c. 79, § 22, as appearing in St. 1973, c. 983, § l,
Aggrieved by this determination, the plaintiff claimed the trial de nova before a jury which was then available
The plaintiff urges that he was deprived of his right to the trial by jury afforded by § 22. But for the plaintiff’s earnest insistence, we would have thought it thoroughly understood that the right to a trial by jury is not absolute. Paro v. Longwood Hosp., 373 Mass. 645, 654 (1977). Juries find facts and none of the facts on the basis of which title was to be determined were in dispute. Application of the law to those facts, i.e., construction of old deeds and plans, was for the judge, not a jury. The plaintiff was no more deprived of the right to trial by jury than is a tort claimant whose action is ended by summary judgment (see Cefalu v. Globe Newspaper Co., 8 Mass. App. Ct. 71, 79 [1979], appeal dismissed, 444 U.S. 1060 [1980]), or the party whose jury verdict is set aside for errors of law (see New England Novelty Co. v. Sandberg, 315 Mass. 739, 750 [1944]). Haufler v. Commonwealth, supra, is not to the contrary since it did not deal with issues dispositive of the claimant’s rights.
Judgment affirmed.
Statute 1981, c. 800, § 2, amended G. L. c. 79, § 22, so as to eliminate a compulsory first trial without jury and so as to provide for “one trial before a jury, unless all parties waive trial by jury and file a written agreement requesting a trial without a jury.”