Main v. Plymouth Cnty.

Decision Date02 March 1916
Citation111 N.E. 694,223 Mass. 66
PartiesMAIN v. PLYMOUTH COUNTY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Report from Superior Court, Plymouth County; John F. Brown, Judge.

Petition by Charles E. Main against the County of Plymouth. On report. Petition dismissed.

Ethelbert V. Grabill and Goldmann Edmunds, both of Boston, for petitioner.

Davis, Peabody & Brown, of Boston, for defendant.

RUGG, C. J.

This is a petition under R. L. c. 48, § 13, to recover indemnity for loss suffered and expense incurred by the plaintiffin connection with proceedings touching the laying out of a way. In November, 1909, a petition was filed with the county commissioners of Plymouth county, relative to a way across the plaintiff's land. The plaintiff from the first opposed the granting of the petition, whereby he incurred expenses for witnesses, surveyors and attorneys, as well as loss of his own time. After hearing and deliberation, the county commissioners made a decree in April, 1911, laying out the way. The plaintiff thereupon filed a petition for a writ of certiorari to quash this decree, in which he was successful, Main v. County Commissioners, 212 Mass. 182, 98 N. E. 621. In the prosecution of that petition he incurred expenses for counsel fees and otherwise. The disbursements and loss of time in connection with each of these matters form the subject of this petition.

The governing statute is R. L. c. 48, § 13.1 Its meaning as applied to the facts of the case at bar may be made clearer by an examination of its history. St. 1842, c. 86, § 1, is the first statute bearing on the subject. It there was enacted, after providing for the estimation of damages sustained by any person in his property by the laying out of a way, that such damages should not be paid nor should the injured them until the land was right to demand them until the land was entered upon for the purpose of constructing the way. Then followed these words:

‘Provided nevertheless that when any person so claiming damages shall have been put to any trouble or expenses by said proceedings, the county commissioners shall allow him full indemnity therefor, although his land may not be entered upon or possession taken in pursuance of said proceedings.’

As the law stood prior to the passage of that statute, a landowner was entitled to recover and collect his full damages due to the lay-out of a way although his land might never have been entered on and the way had been discontinued before the trial of his petition for damages. Harrington v. Berkshire County, 22 Pick. 263,33 Am. Dec. 741.That the statute resulted from that decision has been recognized in Harding v. Medway, 10 Metc. 465,Drury v. Boston, 101 Mass. 439,Corey v. Wrentham, 164 Mass. 18, 41 N. E. 101, and Munroe v. Woburn, 220 Mass. 116, 107 N. E. 413. Interpreting the statute in the light of that decision, it is plain that its primary design was to avoid the unjust result of enabling a landowner to recover full damages although his land never in fact had been taken from him, nor his possession disturbed. A concurrent purpose doubtless was to afford indemnity to a landowner who claimed damages by reason of the lay-out of the way, for trouble and expenses to which he had been put by the proceedings incident to that lay-out. The plain effect of that statute was to allow such indemnity only to a person ‘so claiming damages,’ that is, to one, an easement in whose land was seized but not actually entered upon in consequence of the lay-out. It gave no right to anybody who was not in a position to claim damages by reason of a valid taking of an easement in his land. The conclusion cannot be escaped that no trouble or expense antecedent to the lay-out was included in the indemnity provided by that statute. The indemnity further was confined to the trouble and expenses growing out of ‘said proceedings,’ which means the proceedings whereby the lay-out was made but never constructed. It did not refer to any other proceedings. Manifestly, in this state of the law, no landowner could claim indemnity for trouble or expense caused by demonstrating through action in court or otherwise that a pretended lay-out was illegal. Nor did the statute provide indemnity for loss occasioned to the landowner by opposition to the petition or other proceedings which preceded the lay-out. The landowner was prevented from collecting his damages caused by the lay-out until there should be an entry for constructing the way. It was only for the trouble and expense incident to this circumstance that the statute afforded relief.

The landowner was in a difficult position. Under the law as it then was, if he was dissatisfied with the award of damages made by the county commissioners, he was obliged to make his application for a trial by jury within six months from the time of the layout, quite regardless of the fact whether there had been an entry upon the land for purposes of construction or not. Rev. Stats. c. 24, § 11. Therefore he well might be caused the expense of a jury trial to determine damages which never would become payable.It was to reimburse the...

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    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 15 d5 Abril d5 1983
    ...may be impleaded"); Arthur A. Johnson Corp. v. Commonwealth, 306 Mass. 347, 353, 28 N.E.2d 465 (1940), quoting Main v. County of Plymouth, 223 Mass. 66, 69, 111 N.E. 694 (1916) ("It is a familiar principle of statutory construction that mere verbal changes in the revision of a statute do no......
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    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 31 d6 Janeiro d6 1925
    ...whether it was anything more than a verbal modification not altering the real meaning of the statute. See Main v. County of Plymouth, 223 Mass. 66, 69, 111 N. E. 694. The true interpretation of the statute in that particular, whatever it may be, has no decisive bearing on the present questi......
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    • 10 d5 Abril d5 1931
    ...to enlarge or vary the meaning of the original enactment by the slight changes in subsequent reenactments. Main v. County of Plymouth, 223 Mass. 66, 69, 111 N. E. 694;Boston & Maine Railroad v. Billerica, 262 Mass. 439, 449, 160 N. E. 419. It was said respecting this statute in Hall v. Rein......
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    ...scope. Its words are presumed to continue to have attached to them the same sense as in the preceding enactment. Main v. County of Plymouth, 223 Mass. 66, 69, 111 N. E. 694, and cases cited; Derinza's Case, 229 Mass. 435, 442, 443, 118 N. E. 942; See v. Building Commissioner of Springfield,......
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