Burr v. Leicester
| Decision Date | 04 November 1876 |
| Citation | 121 Mass. 241 |
| Parties | Ellen Burr v. Inhabitants of Leicester |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Worcester. Petition under the Gen. Sts. c. 44, §§ 19, 20, to the county commissioners for a jury to assess the damages to the petitioner's estate by repairing a highway in Leicester.
At the trial before the sheriff's jury no question was made that the proper step by petition to the selectmen for the damages complained of was not made, or that they did not refuse to award the petitioner damages. It appeared that the petitioner was the owner of an estate situated in Leicester, and abutting upon the public highway leading from Worcester to Leicester about one hundred and ninety feet; that within the limits of the highway, between the wrought portions thereof and the land of the petitioner, was a bank of earth about fifteen feet in height at its highest point, on which there was a way, on a grade with said estate, about ten feet wide and extending the entire front of said estate, over which from time immemorial, the occupants of said estate and others had been accustomed to travel for the purpose of reaching said estate, from which way the bank gradually sloped to the wrought and travelled part of the highway; that the surveyor of highways removed portions of said earth in front of said estate, within the limits of the highway, but did not touch or remove any of the petitioner's estate, and used it on the highway for the purpose of repairing the same by placing a load in places as needed at different points thereon within twenty rods in one direction from the petitioner's estate and sixty rods in the other; that but a few shovelfuls were used directly in front of the petitioner's estate on the wrought and travelled part of the highway; that the removal of said earth left a perpendicular bank within five feet of the petitioner's estate and destroyed the way on the bank used for the purpose of reaching said estate; and that the earth was needed for the purpose of repairing as aforesaid and this bank was the only convenient place where it could be obtained.
The respondent asked the sheriff to rule that the town was not liable for the acts complained of, except so far as it did acts opposite the estate of the petitioner for the purpose of repairing the way at that point; and that the town was not liable for the damage done to the petitioner's estate by reason of its being deprived of earth from a bank of gravel opposite her estate within the limits of the highway, which was taken for the purpose of repairing the way by levelling up the grade thereof at points not opposite the estate concerning which this complaint was made. The presiding officer refused so to rule; but instructed the jury that the removal of the earth in question and its use in the manner aforesaid was an act done for the purpose of repairing the way within the meaning of the Gen. Sts. c. 44, § 19, and rendered the town liable for any damage done to the estate by the removal of the whole amount of the earth, and not merely of that used directly in front of the estate.
The jury returned a verdict for the petitioner, which was accepted in the Superior Court; and the respondent appealed.
Verdict affirmed.
F. T. Blackmer, for the respondent.
W. A. Williams & J. R. Thayer, for the petitioner.
OPINION
The authority of the decision in Callender v Marsh, 1 Pick. 418, has never been questioned. Parker, C. J., in delivering the...
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...to provide that losses of the kind complained of in this suit should be compensated.’ See, also, Rev.Sts. (1836) c. 25, § 6; Burr v. Leicester, 121 Mass. 241. In accordance with that case, it is settled that an owner whose land is not taken cannot obtain compensation for the incidental inju......
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