Murray v. Norfolk County
| Decision Date | 17 May 1889 |
| Citation | 149 Mass. 328,21 N.E. 757 |
| Parties | MURRAY v. COUNTY OF NORFOLK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 17 1889
HEADNOTES
Wm.
H. Towne, for petitioner.
T.E Grover, for respondent.
The case at bar is before us on exceptions to the rulings of the presiding judge by both the petitioner and respondent in a proceeding to assess the damages sustained by the petitioner by the relocation and widening of River street a highway in the town of Hyde Park. The county commissioners made a decree for this relocation which took from the petitioner a strip of land extending along the front of her estate of about 11 feet in width. This decree was recorded on the 26th day of July, 1887, and ordered that the town of Hyde Park construct the street as located anew within one year from that date, according to a plan which was made part of the decree, to the satisfaction of the commissioners, and ordered that the damages occasioned by the relocation and construction should be paid by the county. While the decree and order were filed with the town clerk, the petitioner had no actual notice thereof, but we do not understand that this has been insisted upon by the petitioner in argument. Nor can we perceive that such an objection could properly be availed of here. Not only has the petitioner had all the notice which the statute requires under chapter 49, § 9, but by bringing her petition to the superior court for the assessment of her damages she necessarily assumes that the proceedings were legal and regular, and that she is entitled to avail herself of this statutory process, which is a substitute for the petition for a sheriff's jury. Pub.St. c. 49, § 105. If she sought to avail herself of a defective notice, her remedy would be by an action of tort or petition for certiorari to quash the proceedings. Foley v. Haverhill, 144 Mass 352, 11 N.E. 554. By the decree the owners of the land were given three months within which to remove property on the land taken for the widening. Upon the strip taken there was a hedge, which was not removed by the petitioner, but was cut down by the town in the work of widening, which was not commenced until nearly a year after the decree. There were also in front of the petitioner's premises, but within the limits of the highway as it existed before the widening, seven trees, which were cut down by order of the selectmen of Hyde Park in reconstructing the street. For this hedge and the trees the petitioner claimed that she was entitled to recover damages, but the court ruled otherwise, and held that, if not removed, they must be held to be forfeited to the town, to which ruling the petitioner excepted.
We must assume that the instructions of the court were correct except in the particulars to which the petitioner excepted, and that, the assessment of damages relating back to the time of taking, the jury were allowed to consider the value of the land taken, the injury, if any, to her remaining land,--whether occasioned by the removal of the hedge and trees or otherwise,--the cost of fencing, and generally damage done to the petitioner, whether by taking her property or in any other manner, and that she was only prevented from recovering the specific value of the hedge and trees. In connection with such instructions the jury would necessarily understand that the petitioner would be entitled to the full value of the land taken, with all that was upon it, with all injury to the remaining land, deducting therefrom the value of the hedge and trees for the purpose of removal, the claims for which the ruling treats as abandoned by the owner's neglect to remove the same within the time allowed. It remains to be considered whether the court could rightfully hold that such a deduction could be made. This depends primarily upon the interpretation of Pub.St. c. 49, § 9. The last clause of this section is as follows: See chapter 49, § 51, which provides for an extension of time for such removal by a jury assessing damages. It is provided: "If he [the owner of the land] neglects to take off the same within the extended time, he shall be deemed to have relinquished his claim thereto for the benefit of the town, as before provided." It is the contention of the respondent that the statute intends that in case of failure to remove trees there shall be no compensation therefor. All that is taken for the highway is an easement in the land. The trees, etc., which are upon the land are not intended to be taken, and ample opportunity is given to remove them. When it is provided that if not removed it shall be deemed that "the right thereto," or "the claim thereto,"--which is the phrase of the fifty-first section,--is relinquished for the benefit of the town, it must mean that such right or claim is abandoned. It is not easy to see how the relinquishment could be of benefit to the town constructing the road, if yet the value of the tree which the owner thus relinquished is to be paid for. Nor do we perceive that there is any constitutional objection to this construction. We readily concede the petitioner's proposition that the duty of paying an adequate compensation for private property taken is inseparable from the exercise of the right of eminent domain. But when that which is upon the land in the shape of trees, etc., is not sought to be taken by the location, when time is given for its removal, and when, is not removed, no deduction is made from the owner's damages except of its value for the purpose of removal, we do not perceive that any injustice is done him, or that he may not properly be deemed to have abandoned any claim for compensation for such property if he thus relinquishes it. Com. v. Noxon, 12 Mass. 42; Colburn v. Kittridge, 131 Mass. 472. There is a separate ground, so far as the trees, as distinguished from the hedge are concerned, upon which the court also ruled that the petitioner could not recover their value. These trees were within the limits of the old way. They were not cut down by any order of the commissioners. The removal of obstructions in the street of highway is a duty which is left with the town. If these trees became an obstruction in the street by reason of its widening, in the opinion of the proper officers of the town, it was for them so to determine, and order their removal, and their decision is conclusive Morrison v. Howe, 120 Mass. 565. Whether the officers of Hyde Park took the...
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