| Mass. | Jun 28, 1878
The right of the landowner to damages for land taken by a railroad corporation is complete when the location is made. That act constitutes the taking. It is the loss occasioned by the exercise of the right of eminent domain at that time, for which the statutes provide indemnity. The amount is then due, and, if agreed upon by the parties, must be then paid. If not agreed on, the damages are assessed by a jury n the application of either party; but they are assessed as of thy jme of the location, and the jury may properly allow interest upon the amount ascertained as damages, for the detention of the money from the time of the taking. The damages are to be assessed in the manner, anil upon the same proceedings, as is provided for the recovery of damages in the laying out of highways. Gen. Sts. c. 63, §§ 21, 22.
In the case of Parks v. Boston, 15 Pick. 198, 208, the jury, in a highway case, were told that the plaintiff was entitled to recover the value of the land at the time when it was taken, with interest from that time, subject to reasonable deduction for benefits to him caused by the widening; and Chief Justice Shaw declared that “ it is not, strictly speaking, an action for damages ; but rather a valuation or appraisement of an incumbrance created on the plaintiff’s estate, for the use of the public. It is the purchase of a public easement, the consideration for which is settled by such appraisement only because the parties are unable to agree upon it. The true role would be, as in the case of other
The instruction in the case at bar, that the landowner was entitled to interest upon the damages found, from the time the company entered upon the land by any act affecting the owner’s use of it, was sufficiently favorable to the railroad corporation, if indeed there was any exception to that part of the instruction.
The other question raised relates to the refusal of the court to instruct the jury that they were bound to take into consideration certain benefits which the landowner had enjoyed in the use of the land by him since the location was filed.
It appeared that the railroad crossed the respondent’s cranberry bog upon an embankment through which an opening was made for drainage. The company built a culvert on adjoining land, and dug ditches to it by the side of the embankment, in order to provide for such drainage. They also built bar-ways and laid planks for a crossing. There was evidence that the respondent used these provisions for crossing and for drainage. The railroad corporation contended that the jury should be required to take into consideration, in reduction of damages and interest, this use by the respondent. But the judge properly declined so to instruct them.
No right of crossing or of drainage was reserved in the origina, location filed by the company, or ordered by the county eommiu*
It is unnecessary to decide what might be the effect of an express agreement between the parties, that such benefits received should go in reduction of damages. The case does not disclose any evidence of any such agreement, or of any understanding that the landowner had a right to such benefits. The subsequent dealings of the parties in the use of this land or in other respects, where there has been no release or settlement, cannot affect the vested right. In White v. Boston & Providence Railroad, 6 Cush. 420, the landowner was not permitted to show that the way legally reserved to him had not been made for his use. In Brown v. Worcester, 13 Gray, 31, the defendant was not permitted to avail itself of a permission given to the plaintiff to keep his house on the location until he had occasion to rebuild or remove it. In Dickenson v. Fitchburg, 13 Gray, 546, evidence that land taken for a highway had since been laid out as a sidewalk was held inadmissible in reduction of the owner’s damages. See also Cobb v. Boston, 109 Mass. 438" court="Mass." date_filed="1872-03-15" href="https://app.midpage.ai/document/cobb-v-city-of-boston-6416848?utm_source=webapp" opinion_id="6416848">109 Mass. 438, and 112 Mass. 181" court="Mass." date_filed="1873-03-15" href="https://app.midpage.ai/document/cobb-v-city-of-boston-6417250?utm_source=webapp" opinion_id="6417250">112 Mass. 181; Burt v. Merchants' Ins. Co. 115 Mass. 1" court="Mass." date_filed="1874-03-17" href="https://app.midpage.ai/document/burt-v-merchants-insurance-6417636?utm_source=webapp" opinion_id="6417636">115 Mass. 1.
If either party has suffered injury or acquired rights in such subsequent dealings, the remedy for such injury or the enforcement of those rights must be had in some other form of proceeding. To hold otherwise would be to allow the railroad corporation to establish a set-off in a case where it could not be prop
Besiies, if benefits subsequently received were allowed to diminish the damages to be awarded, the question submitted to the jury would be different from that which is previously passed upon by the county commissioners; and the landowner might be unjustly subjected to costs for failing to recover a greater amount than was previously awarded and tendered. Such could not have been the intention of our statute which gives to the trial before the jury the nature of an appeal from the county commissioners, and subjects the petitioner to costs if he fails to recover as much as was previously awarded. Gen. Sts. c. 63, §§ 21, 22, 35.
The case of Pinkerton v. Boston & Albany Railroad, 109 Mass. 527" court="Mass." date_filed="1872-03-15" href="https://app.midpage.ai/document/pinkerton-v-boston--albany-railroad-6416870?utm_source=webapp" opinion_id="6416870">109 Mass. 527, 536, is cited by the petitioner as opposed to these results. But we do not understand it to have been decided in that case that a release even of part of the land, if tendered to the landowner and not accepted, could be considered in reduction of damages. The point decided was, that a conditional abandonment of location, not accepted, would be no bar to a petition for an assessment of damages. This was a full answer to the point made by the respondent, although it was said in addition that the rights of the respondent were sufficiently protected by the ruling that this attempt to abandon was proper for the consideration of the jury in mitigation of damages. To this ruling in the respondent’s favor no exception was taken, and no decision upon it was called for. It would seem that subsequent changes in the relations of the parties, at least short of an unqualified abandonment of a location which has never been entered upon, or of a release or settlement of the claim, cannot be availed of to bar the proceedings, or to increase or diminish the damages to be awarded.
A majority of the court is of opinion that in the case at bar the entry must be Exceptions overruled.