150 Mass. 350 | Mass. | 1890
The discontinuance of a portion of the way as laid out does not have the effect to cut off the petitioners’ right to damages for the taking of their land, which was included in the portion of the way so discontinued. Where a way is laid out over the land of several persons, an entry for the purpose of constructing any part of the way is deemed a taking of possession of all the lands included in the laying out made upon the same petition. Pub. Sts. c. 49, § 88. It was admitted that such entry had been made before the filing of the petition, though not upon land of the petitioners. By virtue of the statute, such entry is deemed to be a taking of possession of the land of the petitioners; and the taking of possession gives them a right to damages.
This would be very clear, but the respondent makes an ingenious argument to the effect that such was not the true construction of the statutes in force prior to the Public Statutes, and that by the enactment of the Public Statutes it was not intended to change the law. But the same construction should be given to the statutes in force prior to the Public Statutes. Under the St. of 1847, c. 259, and the preceding statutes, if a man’s land had been entered upon and possession taken for a way, he had a vested right to his damages; but otherwise
Exceptions overruled.