318 Mass. 592 | Mass. | 1945
It is alleged in this petition filed in the Superior Court in 1941 that in 1939 the Commonwealth took from the petitioner for State highway purposes two parcels of land in West Stockbridge; that in 1940 he “duly” filed a petition for the assessment of his damages; that at the trial of that petition the Commonwealth “offered to prove” an alleged agreement referred to as “exhibit 6” for settlement,
The Commonwealth demurred for the causes, among others, that the petition set forth no ground for relief in equity, and that the petitioner had a full, complete, and adequate remedy upon the petition for assessment of damages. The petitioner appeals from decrees sustaining the demurrer and dismissing the petition.
The decrees were right.
The petition now before us shows that the petitioner had a complete remedy through a petition for assessment of damages for the takings brought under G. L. (Ter. Ed.) c. 79, § 14. He had no need of recourse to equity. At the trial of such a petition an agreement tainted with fraud would not avail the Commonwealth. Gale v. Nickerson, 151 Mass. 428, 432. See Russell v. Barstow, 144 Mass. 130; Preston v. Newton, 213 Mass. 483; Wine v. Commonwealth, 301 Mass. 451, 454. Moreover, the present petition further shows that the petitioner actually brought a proceeding for the assessment of damages which, so far as appears,
It is hardly necessary to add that in so far as the petitioner prays for a decree that he may be allowed to file a new petition for assessment of damages, his rights are governed by the pertinent statute (G. L. [Ter. Ed.] c. 79, particularly §§14 and 16), and the courts have no power to confer upon him the privilege of filing successive petitions or of petitioning at times different from those fixed by statute.
The decrees sustaining the demurrer and dismissing the petition are affirmed. A number of appeals appearing in the record relating to various interlocutory matters, if properly before us at all, have become immaterial and are dismissed.
So ordered.
In bis brief the petitioner says that bis petition for the assessment of damages went to judgment in favor of the Commonwealth on February 28, 1944, long after the present petition was filed.