197 Mass. 412 | Mass. | 1908
The petitioner in the first case was an owner of land abutting on Brown Street in Cambridge. The city
The petitioner now asks that the respondents be ordered by writ of mandamus “to pass orders showing that they have adjudicated that public convenience and necessity required the taking the whole of the estate of the petitioner . . . and that they have taken the whole of said estate.”
A short answer to this claim of the petitioner well might be that it affirmatively appears that the board did not make any such adjudication as is alleged, but that it expressly adjudged the contrary. As, however, a decision upon this ground would leave open the question whether, after the petitioner’s notice, there was any valid taking of the whole or any part of the petitioner’s land under the order of December 16,1905, and as the whole case has been elaborately argued by the petitioner, we have preferred to consider the main question involved, whether, after the passage of the order laying out the street and taking a part of the petitioner’s land therefor, he had any right to surrender his whole estate under the provisions of R. L. c. 50, § 4. If he had such right, he undoubtedly is entitled to some redress, in some form of action; if not, his attempted surrender was wholly nugatory, and could not affect in any way the validity of the original taking. The original validity of the order has been already established in previous litigation between these parties. Taintor v. Mayor & City Council of Cambridge, 192 Mass. 522.
The provisions for the laying out of streets are embodied in R. L. c. 48. They contain ample provisions to secure notice to all landowners of an intended lay-out of streets for which any of their land may be taken or injuriously affected. See §§ 3, 12,
If the order in question had contained the statement that the petitioner’s damages were assessed at a certain sum, there would be no doubt that the time within which he might elect to surrender his whole estate under R. L. c. 50, § 4, had expired. The same rule would necessarily be applied if the order had contained an express statement of an adjudication by the board that the petitioner was not entitled to any damages for the taking of his land. This would have been an estimate of his damages within the meaning of the statute just cited. But it is settled by the decisions already and hereafter referred to that the legal effect of the order in fixing the rights of the parties is the same as if it had contained the statement of such an adjudication and only one such adjudication can be made. Cambridge v. County Commissioners, 117 Mass. 79, 83. Fuller v. Somerville, 136 Mass. 556.
It follows that the failure in the order of lay-out passed
So ordered.
The second case is a petition for the assessment of damages for the taking of his whole estate, which is sought to be maintained on the ground that it was the duty of the city, upon receipt of the petitioner’s election to surrender his whole estate, to proceed actually to take it, and that the city is estopped to deny such a taking. To this contention it is a sufficient answer to say that not only has the proper board, instead of taking it, expressly refused so to do, but for the reasons already stated the board was under no duty or obligation to make such additional taking. Accordingly the petition cannot be maintained; and we need not consider whether there
Exceptions overruled.
The ease was reserved by Loving, J., upon the pleadings and the evidence for determination by the full court.
The case was tried in the Superior Court before Hardy, J., who ordered a verdict for the respondent. The petitioner alleged exceptions to this ruling and also to the exclusion of certain evidence, now immaterial.