Mcgrath v. Town of Watertown
| Decision Date | 20 May 1902 |
| Citation | 63 N.E. 889,181 Mass. 380 |
| Parties | McGRATH v. Town of Watertown |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R. R. Gilman, John T. Wilson, and Phillip Pinkney for petitioner.
John E Abbott, for repondent.
This is a petition for a jury to assess the damages occasioned to the petitioner's land by the widening of a town way in Watertown. The petition is brought under Pub. St. c. 49, §§ 68-79, the last as amended by St. 1892, c. 415, § 2. By the latter statute the petition must be brought within the time specified in Pub. St. c. 49, § 33, amended by section 1 of the same statute. If, as alleged in the petition, land of the petitioner was taken, this would be within one year from the day when the way was entered upon and possession taken for the purpose of constructing the same, otherwise, within one year from the date of the order. The town voted in December 1897, to lay out the way. The street was entered upon on May 26, 1898, and the work was finished on July 23, 1898. This petition was filed on July 26, 1899, and therefore was too late, and on this ground it was dismissed by the Superior Court. The case comes here on report. The petitioner contends that the defence was not open because not seasonably and properly set up, and also that the defendant's conduct precludes it from taking the defence.
The last mentioned contention seems to be an afterthought, and may be dismissed with a word. Such facts as are reported make it highly probable that the plaintiff knew of every step as it was taken, and certainly are as far as possible from establishing as matter of law that the defendant was responsible for the petitioner's delay.
The facts with regard to the other matter are these. The case came on for trial on March 19, 1901. No answer had been filed and none appears to have been demanded. After the jury was impanelled the defendant made an oral motion to dismiss, on the ground that the petition was filed too late. On the suggestion of the court, and by agreement, consideration of the motion was reserved until after the verdict, and time was given to the defendant to file the motion in writing. The motion was reduced to writing and given to the presiding justice before the close of the trial, but it was 'formaily filed in writing' some days after the verdict.
For the purpose of this decision it may be assumed that the petitioners' premise is true, and that in this case an in others the lapse of the year must be pleaded, and even that the defence may be waived (Sawyer v. City of Boston, 144 Mass. 470, 472, 11 N.E. 711), although if necessary those cases would have to be dealt with which declared...
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