Gray v. Inhabitants of Everett
| Decision Date | 26 February 1895 |
| Citation | 163 Mass. 77,39 N.E. 774 |
| Parties | GRAY v. TOWN OF EVERETT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
It appeared that the acts alleged to have been committed by the town were done under a laying out by road commissioners, and were not in the nature of repairs. The court allowed the petitioner to amend his petition in accordance with the facts, and defendant excepted.
H.P. Harriman and F.J. Daggett, for petitioner.
G.E Smith, for defendant.
In our opinion, the superior court has power to allow an amendment changing a petition under Pub.St. c. 52, § 16, for damage to property by reason of any raising, lowering, or other act done for the purpose of repairing a way, into a petition under Id. c. 49, § 79, for the assessment of damages occasioned by the laying out of the way, if, when the proceedings in the superior court were begun, the petitioner had the right to the latter remedy, and if the work upon the way relied upon in support of the amended petition was the cause of action relied upon in the petition originally filed. Such petitions are of the same general character, and are to be tried at the same bar, and in the same manner. The same acts of the town upon the surface of the ground within the limits of the way will sustain one petition if they are repairs of a pre-existing way, and the other petition if they are done in the construction of a way newly laid out. In both petitions the assertion of the petitioner is that the acts were legal were done by the authority of the respondent, and have damaged the petitioner's property. When, as in the present case, the way was in use as an open street before it was laid out as a public way by the town, and continued to be used without alteration for some months thereafter before the change of grade by which the petitioner's property was damaged, the error of treating the change in the surface of the street as work done in repairs, rather than in original construction, is not of a kind to prejudice the respondent. While the allowance of the amendment will deprive the respondent of a defense purely technical, it will merely compel the payment of damages actually sustained, and for which the respondent was answerable when the petition was brought, and in the court where it was brought. It is settled that such petitions are within the spirit of the statutes of amendments. Grand Junction R. Co. v....
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