| Mass. | May 9, 1889
This is a petition under chapter 49 of the Public Statutes, for the assessment of damages for land taken for a highway. The only question argued is whether the proceedings upon it should be conducted under § 18 of that chapter, or under § 20 and the following sections. This question is not properly before us on a motion to dismiss the petition. The allegation in the petition that § 18 of the statute is applicable to the case is not an allegation of a substantive fact which would prevent the court from entertaining the petition, although it might hold that the subsequent proceedings should be conducted under § 20. If, as was stated at the argument, a prior petition has been filed by one of the parties in interest, the defendant should avail itself of this fact by an answer in the nature of a plea in abatement. It does not therefore appear upon the record before us, and we cannot regard it as a fact. The petition is sufficient, and, upon the record transmitted to us, the order dismissing it was erroneous. If this was merely a technical objection, and we were duly informed of all the facts in the case, we should be inclined to overlook it. But the question whether the proceedings shall be according to § 18 or according to § 20 must depend upon the state of facts shown to exist when the jury is impanelled. Perhaps we might assume that the petition correctly states the title to the land taken. But as to the mortgage, the effect of which presents the most difficult question in the case, there is not a sufficient statement. It is merely stated that there is a mortgage of an undivided half, dated July 2, 1883. It does not appear whether it is a mortgage to secure a sum of money lent, or to secure some future contingent liability; whether there has been a breach of
The motion to dismiss must be overruled, and the case must stand for further proceedings in the Superior Court.
Motion to dismiss overruled.