Lancy v. City of Boston

• Citation: 70 N.E. 88,185 Mass. 219
• Parties: LANCY v. CITY OF BOSTON.
• Decision Date: 27 February 1904
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 219

70 N.E. 88

LANCY v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1904

COUNSEL

W. O. Childs, for plaintiff.

Samuel M. Child, for defendant.

OPINION

LATHROP, J.

This is a petition to the superior court, filed June 25, 1900, for a jury to assess damages for the taking of a parcel of the petitioner's land for a highway by the commissioners appointed under St. 1897, p. 550, c. 519, to consider the abolition of the grade crossing of Dorchester avenue and the railroad of the Old Colony Railroad Company. The decision of the commissioners was confirmed by the court on June 23 1898. The taking by the commissioners was authorized by section 3 of the act, and by section 4 all damages suffered by any persons in their property by reason of anything done under the act might be recovered as provided in St. 1890, p 463, c. 428. Section 5 of this act provides that a petition to the superior court for the assessment of damages shall be 'brought within one year after the day of the date of the decree of the court confirming the decision of said commission.' The respondent filed a general denial, and subsequently moved to have the petition dismissed for the reason that it was not filed in time; and the petitioner moved to amend the petition into a bill in equity, incorporating it as a paragraph in the original petition for the abolition of the grade crossing, by striking out the prayer for a jury, and substituting therefor a prayer that the damages be assessed by the court sitting in equity, and an allegation that the taking was without the knowledge of the petitioner, or notice to him; that he first learned of the taking about June 20, 1900; that the land was erroneously taken as the land of the Old Colony Railroad Company, and not as the land of the plaintiff; and that, if it had been taken as his, he would have had an award in his favor, and would have been notified of the taking. The judge ruled that the petition could not be maintained, granted the motion to dismiss, and ordered judgment for the respondent. The judge further ruled that, if the petition could be turned into a bill in equity, it could not be maintained for the assessment of damages, and reported the case for the determination of this court. If either of the rulings was wrong, judgment was to be entered for the petitioner for $200 and costs.

The first contention of the petitioner is that the petition can be maintained on the ground that the street was laid out, not as a part of the abolition of Dorchester avenue grade crossing, but as a separate municipal improvement; and to this point he cites Farwell v. Boston, 180 Mass. 433, 438, 62 N.E. 751. While there is broad and general language in the opinion, the only points decided were that section 4 of the Statutes of 1897, p. 552, c. 519, was intended 'to insure compensation for all damages, but not to change the rule of damages,' and that a petitioner whose access to a railroad was taken away by the removal of the railroad, and whose land was not taken in this connection, could not recover damages for the injury to his business. There is nothing in that case which bears upon the contention of the petitioner here as to the time in which the petition must be filed. Where a statute limits the time in which a petition for damages must be brought, the court has no jurisdiction to entertain a petition brought after that time has expired. Custy v. Lowell, 117 Mass. 78; Cambridge v. County Commissioners, Id. 79; Gately v. Old Colony Railroad, 171 Mass. 494, 51 N.E. 5--a decision under St. 1890, p. 464, c. 428, § 5. See, also, McGrath v. Watertown, 181 Mass. 380, 63 N.E. 889. The petition, therefore, was rightly dismissed.

It is not contended that the case falls within the provisions of St. 1900, p. 57, c. 84, and it is clear that it does not, for that statute is limited to persons...