Fall R. R. Co. v. Chase
| Decision Date | 30 October 1878 |
| Citation | 125 Mass. 483 |
| Parties | Fall River Railroad Company v. Thomas J. Chase |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Bristol. Petition to the Superior Court, at September term 1876, for the reassessment by a jury of the damages occasioned to the respondent by the taking of his land for the petitioner's railroad.
On August 2, 1876, the county commissioners, on the petition of Chase, had assessed such damages at the sum of $ 94. Chase did not file any petition for reassessment by a jury; but on October 13, 1876, in answer to the petition of the railroad company, alleged that he was aggrieved by and dissatisfied with the estimate and award of the county commissioners, and demanded a trial by jury.
On September 18, 1877, the corporation filed a discontinuance of its petition. On October 24, Chase notified the corporation that, notwithstanding such discontinuance, he should claim that the case should go on. On November 19, the case was reached in the order of the docket, and Brigham, C. J ruled, against the protest and exception of the counsel for the corporation, that it should proceed to trial. The trial resulted in a verdict against the company for $ 200, which was accepted by the court; and the company alleged exceptions.
Exceptions sustained.
T. M Stetson, for the railroad company
J. C. Blaisdell, for Chase.
Either party, dissatisfied with the award of the county commissioners, assessing damages for the taking of land for a railroad, may apply for a jury to assess the damages. Parker v. Boston & Maine Railroad, 3 Cush. 107. Miller v. County Commissioners, 119 Mass. 485. Sts. 1870, c. 75; 1873, c. 261; 1874, c. 372, § 68. But he is not entitled to a jury, unless he makes his application therefor within a year from the award of the commissioners, and enters into a recognizance for the payment of costs. St. 1874, c. 372, § 67. Gen. Sts. c. 43, § 24. New Haven & Northampton Co. v. Northampton, 102 Mass. 116, 123, 124.
A petition for a jury is not strictly an appeal, and does not vacate the award of the commissioners. The petitioner had the right, at any stage of the proceedings, upon such terms as the court should order, to waive a trial by jury and accept the award of the commissioners. Gen. Sts. c. 43 § 41. The respondent, not having himself filed a petition for a jury and entered into a recognizance, had no right to insist upon a trial by jury. The St. of 1874, c. 372, § 80, does not extend his right in this respect, but...
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...failure to make such demand within the time fixed by statute.' 30 C.J.S. Eminent Domain § 372, page 71. In the case of Fall River Railroad Co. v. Chase, 125 Mass. 483, the court, in dealing with a situation similar to that involved in the instant case, made the following 'Either party, diss......
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Jordan v. Commissioners of Bristol Cnty.
...is material here since it was enacted in 1847. Of this statute in an earlier codification Chief Justice Gray said in Fall River Railroad v. Chase, 125 Mass. 483, 484: ‘St. 1874, c. 372, § 80, * * * is limited to cases in which proceedings * * * have been quashed or defeated for informality.......
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