158 Mass. 185 | Mass. | 1893
1. As there must he a new trial upon other grounds, we need not decide whether the respondent can take advantage of the irregularities in procuring the jury. The statute (Pub. Sts. c. 49, § 39) has been construed to exclude jurors living in the town where the lands lie, and to authorize requisitions upon any three towns of the county which adjoin that town, without reference to the question of proximity to the lands. Wyman v. Lexington West Cambridge Railroad, 13 Met. 316, 324. Brown v. Boston & Worcester Railroad, 13 Met. 327, n. Meacham v. Fitchburg Railroad, 4 Cush. 291, 295. Shattuck v. Stoneham Branch Railroad, 6 Allen, 115. Reed v. Hanover Branch Railroad, 105 Mass. 303. Requisitions were properly made upon three towns. But in consequence of an objection in advance of the hearing, the sheriff irregularly omitted, to notify two of the men drawn, and made a requisition for jurors from a fourth town. When objection was made to the list so constituted, instead of dismissing the jurors from the fourth town, he excused those from a town upon which one of the original requisitions was made. In so doing he chose arbitrarily between jurors present, and the expense, which in these cases is borne by the parties, was increased. There was no error in returning the talesmen. The statute (Pub. Sts. c. 49, § 41) which prescribes the course to be pursued when enough jurors are not present directs merely the return of “suitable persons to supply the deficiency," and does not require them to be residents of the nearest towns. It is only necessary that they shall be qualified and liable to serve in that county. If the sheriff had required the challenges to be made before the choice of the foremati, all the jurors who served would have been able to participate in the choice.
2. Evidence of the declaration of the general manager of the respondent as to the purpose to which the land was to be put was incompetent. He was not an agent of the corporation for the purpose of making admissions. Boston Maine Railroad v. Ordway, 140 Mass. 510. Williamson v. Cambridge Railroad, 144 Mass. 148. Leistritz v. American Zylonite Co. 154 Mass. 382. Richstain v. Washington Mills, 157 Mass. 538. The evidence, however, was of little importance, as the statement was merely that the land was to be used for a purpose for which
3. The award of the commissioners was properly excluded. It was offered only as showing their estimate of the damages, and not because it contained an order affecting the damages, as was the case in White v. Boston & Providence Railroad, 6 Cush. 420, and in Chapin v. Boston & Providence Railroad, 6 Cush. 422. To admit such an award for the purpose for which it was offered in the present case would be to introduce the opinion of the commissioners, without affording the petitioners an opportunity for cross-examination, or enabling the jury to weigh the opinion in connection with the appearance of the commissioners and their means of knowledge. Being merely the decision from which in effect the petitioners had appealed, it was immaterial.
4. The verdicts must be set aside, because the jury were permitted to award damages upon an erroneous view of the law. There are three separate verdicts. The claimants join in the petition, but their rights are distinct. They represent themselves as severally dissatisfied with the estimate made by the commissioners of their several damages by the taking of their respective lands, and each asks for the damage done by the taking of his own land, and not for damage to his land by the taking of the land of the others. The petitioners own much of the village of Wellington and some outlying lands. When the railroad was built, about 1845, the locality was a farm of some one hundred and fifty acres, owned in common by two brothers, James and Isaac Wellington. The railroad skirted the line of demarcation between a swamp on the east and the upland which is now the village. The Medford branch was built about 1852, leaving the main line at the village. The Wellingtons settled for their damages when the main line and the branch were built. About 1853 they divided the farm into four parts, each taking two in severalty, and the tracts were then cut up into house lots, which were put upon the market. Many of them have been sold and built upon, and others have been sold, but remain vacant. The streets dividing the land have been wrought, and are in use, many of them having concrete walks and shade trees. Middle-sex Avenue, a county way, runs through the village nearly parallel with the main line of railroad, and at a distance varying
The petitioners contended, at the trial, that each could recover the value of his own land taken, and the damages caused to all of his other lands in Wellington by the whole taking, that is, by devoting to railroad purposes the whole strip taken from all three petitioners; and they were allowed to introduce evidence upon this theory. The respondent asked instructions based upon a contrary theory, which were refused. One of the petitioners was allowed to testify as to the value of a parcel of land not divided into lots, a quarter of a mile distant, and on the farther side of the village from the railroad, and to give his opinion as to the effect of the taking of April 29, 1890, that is, of the whole taking, upon that parcel. A plan of the village and adjacent lands, called the Binney plan, was used at the trial. An expert was allowed, without restriction, to give his opinion of the effect of the taking upon other lands of the petitioners, as shown on the Binney plan, and other witnesses were allowed to testify to the effect of the taking upon all of the petitioners’ land not taken.
Verdicts set aside.
