Munroe v. City of Woburn
| Decision Date | 08 January 1915 |
| Citation | 220 Mass. 116,107 N.E. 413 |
| Parties | MUNROE v. CITY OF WOBURN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Cornelius A. Parker and H. Huestis Newton, both of Boston, for petitioner.
J. E McConnell, of Boston, and J. Fred Maloney, of Woburn, for respondent.
DE COURCY, J.
The petitioner owns a large lot of land on Union and Main streets, in Woburn. In December, 1908, an order was duly adopted by the city to take a strip of this lot for the purpose of widening Union street; but, as the land was not entered upon to complete the taking, she became entitled to 'indemnity for loss or expense incurred by the proceedings,' by virtue of R. L. c. 48, § 69. The questions raised at the trial involve the construction of this statute.
The trial judge ruled that upon the evidence offered by the petitioner her 'loss and expense' must be confined to her loss of time, and the amounts paid to counsel and to real estate men on account of the taking by the city, amounting in all to $250. Her contention is that she was entitled also to recover for the loss of rentals on a proposed building which she contemplated erecting on the premises, and was deterred from erecting by reason of the order of taking; for the loss of opportunity to make sales of the land during the two years after the respondent's right to take possession accrued (R. L. c. 48, § 92); for money paid to architects for changes in the plans; and for the amount paid by her during the two years for taxes on the whole lot, or at least on the part covered by the taking.
The main controversy between the parties relates to the significance and scope of the word 'loss' in section 69 of the statute; and that must be ascertained, not by analyzing the comprehensive and different definitions of the word, but by determining the sense in which the Legislature used the word in this particular connection. A brief reference to the history of the statute may aid us in interpreting the legislative intent. See Sears v Nahant, 215 Mass. 234, 102 N.E. 491, Ann. Cas. 1914C 1296.
Before 1842, when a public way was once established both the right of the public to a permanent easement and the right of the landowner to damages became vested, and the owner became entitled to his damages although his land never was entered upon and although the way had been discontinued without ever being used by the public. Harrington v. Berkshire County Commissioners, 22 Pick. 263, 33 Am. Dec. 741; Hallock v. Franklin, 2 Metc. 558. Presumably it was in consequence of such decisions that St. 1842, c. 86,§ 1, was passed, by which it was enacted that no person claiming damage should have a right to demand the same until the land had been entered upon and possession taken for the purpose of constructing a highway; and further, that when put to 'any trouble and expense' by the proceedings, he should be allowed full indemnity therefor, although his land may not be entered upon or taken possession of. The history of the subsequent extension of the statute, and of the provision that the layout or alteration should be void as against the owner of the land unless possession should be taken within two years, is traced in Corey v. Wrentham, 164 Mass. 18, 22, 41 N.E. 101.
The case of Whitney v. Lynn, 122 Mass. 338, arose under Gen. St. c. 43, §§ 14, 63, which retained the words 'trouble and expense' of the original statute of 1842. Under the charge of the judge of the superior court the petitioner was allowed to recover, among other things, for the uncertainty as to whether the land was to be entered upon by the city or not, in which he had been kept during the two years from the taking. In setting aside the verdict this court used the...
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