Moore v. Sanford
| Citation | 151 Mass. 285,24 N.E. 323 |
| Parties | MOORE et al. v. SANFORD et al. |
| Decision Date | 28 February 1890 |
| Court | United States State Supreme Judicial Court of Massachusetts |
C.T. Gallagher and H.R. Bailey, for plaintiffs.
H.N Shepard, for defendants.
The first question presented by the report is whether the plaintiffs, by filing their petition, under chapter 290 of the Acts of 1884, for the damages sustained by the taking of their lands under the authority given by that act, have admitted the validity of the taking, and thus waived any right by a proceeding, such as that adopted in the case at bar, to dispute the validity of the taking and the constitutionality of the act assuming to authorize it. This cause does not belong to that class of cases where the selection of one remedy necessarily implies that any other remedy, or any ground therefor, is waived. It certainly would be unjust if a party who reasonably deemed that a statute by authority of which his property was taken was unconstitutional should be compelled to elect whether he would seek for damages under the act, and thus formally admit that this property was lawfully taken, or abandon any claim therefor, and rely solely on his remedy for an unlawful taking. As, in acts of the nature of that which we are considering, the time within which damages may be applied for is usually limited, it would be quite probable that before a decision could finally be reached as to the validity of the taking the time within which he could apply for damages would have expired, and, if such taking were held valid, he would thus be deprived of any remedy for the value of his property. His only safe course would be to file a petition for his damages under the act while he proceeded by other means to test its constitutionality. If, in the latter proceeding, it was held that the taking was valid, he could then proceed under his petition for damages. The plaintiffs were entitled to have the question of the constitutionality of the act determined, and, under their petition for damages, they were by necessary inference compelled in that proceeding to admit that it was constitutional. Pitkin v. Springfield, 112 Mass. 509. But the mere fact that they filed a petition for the purpose of saving their rights to damages, if their view of the constitutionality of the act proved erroneous, ought not to prevent them from having that question settled in another proceeding to which the inquiry was appropriate. Perhaps, if they had voluntarily proceeded to judgment in their petition,--for the plaintiffs ought not to be allowed to experiment in order to ascertain what damages they might obtain before testing the constitutionality of the act; certainly, if they had collected the damages which had been awarded under such a petition,--it would be held that they had finally elected this as their remedy, and that they could not afterwards test the constitutionality of the act to which they had thus given full assent. But the same effect should not be given to a petition filed only as a prudent precaution to guard their rights in a contingency that might thereafter arise.
In the case at bar, it appears that the plaintiffs, living at a distance from the commonwealth, knew of the taking only towards the expiration of the year; that they filed their petition hurriedly, in order to protect such rights as they might have. While this took place in 1884, no answer to the petition was filed until 1886, nor was any movement made by either party for a trial of the petition until 1887; there having been negotiations between the parties looking to a settlement. An auditor was appointed to hear the petition in 1887 for the assessment of damages. Before this time, and before proceeding with the auditor, the counsel of plaintiffs informed the defendants that they intended to dispute and test the validity of the taking, and constitutionality of the act, and the right of an auditor to proceed. It further appeared that, during the year which followed, the then counsel for the plaintiffs became incapacitated by ill health, and was compelled to go away for nearly a year, and that on his return other counsel was retained, who brought this bill forthwith. While an auditor was appointed, the case is still pending before him; only a small part of the plaintiff's evidence having been heard. Under these circumstances, the plaintiffs have not, by any election, deprived themselves of the right to test the validity of the taking. The delays which have occurred appear, with the exception of that resulting from the ill-health of their counsel, to have occurred from causes for which they were mutually responsible.
It is not contended by the plaintiffs that any requirement of the statute was omitted in the taking of their land, or that proper provision was not made for compensation to them; but they urge...
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