Childs v. New Haven & Northampton Co.

• Decision Date: 28 September 1882
• Citation: 133 Mass. 253
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Henry Childs v. New Haven & Northampton Company

133 Mass. 253

Henry Childs v. New Haven & Northampton Company

Supreme Court of Massachusetts

September 28, 1882

Franklin. Petition to the county commissioners for a sheriff's jury, to assess the damages sustained by the taking by the respondent of the petitioner's land in Deerfield for a railroad location. The jury awarded the petitioner a certain sum, which verdict was accepted, and confirmed by the Superior Court; and the respondent appealed to this court. The facts appear in the opinion.

Judgment affirmed.

C Delano & J. A. Aiken, for the respondent.

G. D Williams, for the petitioner.

Devens, J. Endicott, Lord & Field, JJ., absent.

OPINION

Devens, J.

1. The only objection to the record now insisted on is that the warrant for a jury did not have annexed to or made a part of it the adjudication of the county commissioners on that portion of the original petition which prayed that the respondent might be ordered to construct and maintain an opening through the embankment constructed on the petitioner's land, in such manner that the petitioner would be enabled thereby to have more convenient access to the portions of his land situated upon the easterly side thereof. We do not consider this to have been necessary. The warrant sufficiently set forth the subject matter of the inquiry by having incorporated with it a copy of the original petition, which informed the jury of the matter to be tried. Pub. Sts. c. 49, § 38. Walker v. Boston & Maine Railroad, 3 Cush. 1, 15. It is true that the manner in which the respondent was to cross the petitioner's land, and whether it was to be required to maintain what is familiarly termed a "farm crossing," were not subjects of revision by the jury. These had been finally determined by the commissioners. Pub. Sts. c. 112, § 138. But while the convenience or inconvenience of the manner in which the respondent was permitted to cross the petitioner's land was important in ascertaining the damages to be assessed in his favor, it was matter of evidence only. Upon this subject the adjudication of the commissioners was competent to be submitted by either party. In White v. Boston & Providence Railroad, 6 Cush. 420, and Dwight v. County Commissioners, 11 Cush. 201, cited by the respondent, which were petitions heard before sheriff's juries for the assessment of damages caused by the laying out of highways, the records of the proceedings of the commissioners, and their adjudications showing the establishment, direction, course and extent of the ways as located by them, were admitted in evidence, but an examination of the cases shows that they did not form a part of the warrants, nor were they annexed thereto.

2. The objection that there was error on the part of the sheriff in the method taken by him to secure the empanelling of the jury, cannot be considered. The respondent objected that "one Elijah W. Smith, one of the jurors summoned to try the matter of said petition, having declined to serve, one Ansel A. Rankin, a person residing and being in Greenfield was sent for and substituted in place of said Smith on the jury." This objection was made before any evidence was introduced, but it nowhere appears that the facts existed as they are stated therein. These should have been shown by the certificate of the...