237 Mass. 54 | Mass. | 1921
This petition, dated December 20, 1918, is for damages under the mill act, R. L. c. 196. It alleges that from December 1, 1915, to the date of the petition the respondents maintained a dam across a certain non-navigable stream, in order to flow and irrigate land devoted to the cultivation and growth of cranberries; and that the land of the petitioner was thereby overflowed and injured. The respondents moved for the dismissal of the petition on the ground that it “was not brought within three years after the injury complained of, as required by R. L. c. 196, § 4.” The single question raised by the exceptions is whether the
Section 4 of the statute in question provides: “The owner or occupant of land which has been overflowed or otherwise injured by such dam may obtain compensation therefor if, within three ■years after such injury, he files a petition in the Superior Court” etc. The contention of the respondents, which apparently the judge adopted, is that the “injury” referred to is the building of the dam. An examination of other provisions of the statute shows that this construction is untenable. The dam may be maintained for an indefinite period, and the damage caused thereby a continuing one. By the express terms of § 8 “The jury shall assess the amount of damages sustained within three years last preceding the filing of the petition and to the date of their verdict.” Under § 10 the jury must assess both annual and gross damages. The petitioner may elect to take the amount so awarded in gross (§ 11); if he does not, then either party dissatisfied with the annual compensation established may file a new petition for the increase or diminution of such compensation, or for ascertaining the gross amount of the damages; “but if a petitioner has declined to accept gross damages which have been awarded to him, they shall not be again assessed within ten years thereafter.” (§ 21.) And § 27 provides "If, upon a petition by the owner of the land, the jury return a verdict that he is not entitled to any annual compensation, the judgment thereon shall not bar a new petition for damages alleged to have arisen after such verdict and for compensation for damages thereafter sustained.” See Palmer Co. v. Ferrill, 17 Pick. 58; Walker v. Oxford Woollen Manuf. Co. 10 Met. 203; Blackwell v. Phinney, 126 Mass. 458.
The history of this legislation removes any doubt as to the correct interpretation of the clause "within three years after such injury” in § 4. Without going back to St. 1795,,c. 74, and St. 1825, c. 109, we find in Rev. Sts. c. 116, §§ 4, 5, substantially the same provision for damages that now appears in R. L. c. 196, § 4. Instead of the words “within three years after such injury,” the language of the earlier act is, "provided, that no compensation shall be awarded for any damage, sustained more than three years before the institution of the complaint.” This language was retained in subsequent revisions of the statutes. Gen, Sts..c. 149,
Exceptions sustained.
