173 Mass. 507 | Mass. | 1899
Under St. 1889, c. 439, as amended by St. 1890, c. 270, the Metropolitan Sewerage Commissioners took an ease
The court ruled that the petition could not be maintained, and directed a verdict for the respondent. The question before us is whether this ruling was right.
The statute under which the commissioners took the easement and constructed the sewer provides that the Commonwealth “ shall pay ... all damages that shall be sustained by any person or corporation by reason of ‘ such taking.” St. 1890, c. 270, § 1. The Commonwealth contends that the taking for which it is liable in damages is limited to the acquisition of a title to the land or easement taken, or, what is the same thing, to the value of the land or easement taken, and that, for any other damages caused by the construction and maintenance of the sewer to the remaining premises, the remedy of the petitioner, if he has any, is by an action at law. But the taking involved, not only the acquisition of a title, but the appropriation of the land or easement to the use for which it was taken, and the statute provides that all damages caused by the taking shall be paid for. We do not see, therefore, how the damages to be assessed can be limited only to those arising from the acquisition
In Lincoln v. Commonwealth, 164 Mass. 368, which was under the same statute as this petition, the jury were ’permitted to include in their assessment damages which would be caused to the remaining land by the construction of the sewer. There is nothing in that case to warrant the view that the damages are limited to the value of the land or easement taken. To the same effect is Taft v. Commonwealth, 158 Mass. 526, in which the same case under a different name was before the court. See further Butchers’ Slaughtering & Melting Association v. Commonwealth, 169 Mass. 103, which also was under the same statute, and Dana v. Boston, 170 Mass. 593.
In Sheldon v. Boston & Albany Railroad, 172 Mass. 180, it was held, under the grade crossing acts, (St. 1890, c. 428, and St. 1891, c. 123,) which provide for the payment of “all damages sustained by any person in his property by the taking of land,” that one whose well had been drained was entitled to recover damages therefor, though his land had not been taken. A fortiori would he have been entitled to recover such damages if a part of his land had been taken.
It is not necessary to consider the cases in which or the stat
The respondent relies upon the cases of Chelsea Dye House & Laundry Co. v. Commonwealth, 164 Mass. 350, Cabot v. Kingman, 166 Mass. 403, and Magee Furnace Co. v. Commonwealth, 166 Mass. 480. But in each of these cases the sewer was constructed in a public street. It did not appear in either case that the fee" of the street was in the petitioner, and, as the court said in Cabot v. Kingman, it was in effect decided in the Chelsea Dye House case that, if the petitioner owned the fee, “ no additional servitude was imposed upon the land under the highway,” and “no right of any sort was taken in the petitioner’s land.” The cases are therefore quite different from the one before us.
The respondent further contends that the damages were temporary, and therefore not recoverable. It is possible that there may seem to be some excuse for this view in Lincoln v. Common
The respondent also contends that the petitioner is barred by the proceedings in the name of his assignee and the recovery and payment of damages therein. We do not think so. The respondent could have objected to the maintenance of that suit in the name of the assignee, and could have insisted that the petition should be brought in the name of this petitioner, as it ought properly to have been, when all the damages could have been assessed in one proceeding. The fact that it did not see fit to object cannot affect the right of the petitioner to maintain this action. He was not a party to that proceeding, and is not bound by anything that occurred therein.
The result is that, in the opinion of a majority of the court, the verdict must be set aside, and the case stand for trial.
/So ordered.