Dunbar v. Boston & P.R. Corp.

• Decision Date: 20 May 1902
• Citation: 181 Mass. 383,63 N.E. 916
• Parties: DUNBAR v. BOSTON & P. R. CORP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 383

63 N.E. 916

DUNBAR v. BOSTON & P. R. CORP.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1902

COUNSEL

Albert P. Worthen, for plaintiff.

J. H Benton, for defendant.

OPINION

HOLMES C.J.

This is a petition for the assessment of damages to land of the petitioner on Dartmouth Street in Boston caused by raising the grade of that street under the Terminal Company act. St 1896, c. 516. The petition was filed under section 23 of the act, and therefore we may assume that the claim was subject to the limitation of one year imposed by that section although no land of the petitioner was taken. The section contains a general provision giving a jury to parties who have suffered damage to be compensated under the act, and the limitation no doubt was intended to be coextensive with the grant. Upon this construction it is admitted that the petition was not filed within the year, and indeed the opposite view was not much pressed on any ground. The answer relied upon is that on May 23, 1899, 'the time within which any party suffering damages whose land is not taken may file his petition in the superior court for damages accruing from a change of grade occasioned by the location and construction of any railroad by any railroad company other than the terminal company' under the above section 23 was extended to January 1, 1900. St. 1899, c. 386. The defendant contends that this statute is unconstitutional and brings that question here by exceptions. It argues no other point.

The statute assailed is of general operation. and if valid applies as well to the petitioner, who had unquestioned notice of the change of grade by the actual completion of the work before the year expired, as to possible cases of persons who might have found their remedy gone before they knew that anything affecting their rights had been done. In such as case, apart from the authorities, it is impossible not to feel the greatest difficulty in sustaining the act. The nature of the difficulty is indicated in Danforth v. Water Co., 178 Mass. 472, 59 N.E. 1033. However much you may disguise or palliate the change by saying that the statute deals only with the remedy, or that a party has no vested right to a merely technical defense, or by adopting any other cloudy phrase that keeps the light from the fact, such legislation does enact that the property of a person previously free from legal liability shall be given to another who before the statute had no legal claim. It is not merely as it was put by the counsel for the defendant, following the cases, that the defense is as valuable and as much entitled to protection as the claim, if that be true, but the effect of the statute by enabling the barred claim to the collected is to allow property of the defendant to be appropriated which before was free. Woodward v. Railroad Co. (Mass.) 62 N.E. 1051. It is true that the property is not identified until it is seized on execution, but when it is identified by seizure it is taken as truly as land would be if it were allowed to be recovered in a real action notwithstanding the lapse of twenty years.

In the present case there is not the excuse apparent that the statute cured an earlier injustice, as might be the case where a petitioner had had no actual notice of the loss of any rights until he was too late. It cannot be said in more general terms that a statute of limitations as such embodies an arbitrary or merely technical rule. Prescription and limitation are based on one of the deepest principles of human nature, the working of association with what one actually enjoys for a long time, whatever one's defects of title may be, and of dissociation from that of which one is deprived,...