Nicklas v. City of New Bedford

• Decision Date: 09 January 1925
• Citation: 250 Mass. 471
• Parties: JOSEPH W. NICKLAS v. CITY OF NEW BEDFORD. ABRAM HERMAN v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 471

JOSEPH W. NICKLAS v. CITY OF NEW BEDFORD. ABRAM HERMAN v. SAME.

Supreme Judicial Court of Massachusetts, Bristol.

January 9, 1925

October 28, 1924.

Present: RUGG, C.

J., BRALEY, CROSBY PIERCE, & SANDERSON, JJ.

Damages, For property taken or damaged under statutory authority. Jurisdiction. Practice, Civil, Verdict, New trial. Pleading Civil Answer. Limitations, Statute of.

A judge, presiding at the trial together of petitions, by the owner and by a lessee, respectively, of land taken by a city by eminent domain, for the assessment of their damages, had authority on a motion by the respondent that findings be set aside as excessive, to order the verdict set aside unless the petitioners would remit all of the damages assessed in excess of a certain sum which, on the record, could not be said to be

"an amount not calculated and determined upon evidence introduced in the case"; and, upon agreement by the petitioners as to the remaining verdict, he also had authority to make an apportionment between the petitioners in sums agreeable to them; and exceptions by the respondent to such action on the part of the judge must be overruled.

The requirement of G.L.c. 79, Section 16, is a limitation of the right as well as a limitation of the remedy, and the court has no jurisdiction to entertain a petition under Section 14 after the time designated in

Section 16 has expired; therefore a petition filed more than one year after the vesting of the right to damages must be dismissed on motion of the respondent at the trial, although the respondent has filed no appearance nor answer to the petition.

PETITION, filed in the Superior Court on March 31, 1922, by Joseph W. Nicklas alleging himself to be the lessee of certain land in New Bedford taken by the city for the widening of Second Street and entered upon by the respondent on April 2, 1921, the petitioner seeking an assessment of his damages resulting from such taking. Also, a

PETITION, filed in the same court on April 27, 1922, by Abram Herman, the owner of the land of which the petitioner Nicklas alleged himself to be lessee, alleging an entry by the city "on or about May first A.D. 1921."

On May 6, 1924, the petitioner Herman filed a motion in the Nicklas case that he as owner be allowed to join as petitioner with Nicklas in his petition. The motion was heard by Lummus, J., who ordered as follows: "The respondent objecting to the allowance of the foregoing motion on the ground that the time limited in G.L.c. 79, Section 16, had expired before the said Herman made said motion or filed any petition for damages (which I find to be true), I deny the motion on the ground that I have no legal right to grant it (see Partridge v. Arlington, 193 Mass. 530) and note said Herman's exception to such denial."

No appearance nor answer was filed by the respondent. The petitions were tried together before Lummus, J., on May 5, 6, and 7, 1924.

From the record it appeared that the testimony as to values most favorable to the petitioners' contentions was as follows: Loss of land taken: lowest valuation, $8,930; highest valuation, $10,170. Building: lowest valuation, $3,300; highest valuation, $3,850. Leasehold interest: lowest valuation, from $8,100 to $10,800; highest valuation, $13,500.

Other material evidence and proceedings at the trial and upon motions for a new trial are described in the opinion. The respondent alleged exceptions.

B. B. Barney, for the respondent. C. P. Ryan, for Nicklas.

S. Rosenberg, for Herman.

PIERCE, J. The petitioner Herman by a petition filed April 27, 1922 alleging entry "on or about May first, 1921," sought to have damages awarded for taking of realty for the widening of Second Street in New Bedford, March 11, 1921. The petitioner Nicklas was the holder of leasehold rights under the petitioner Herman, who was seised of the premises in fee, and Nicklas also owned the building on said leasehold estate. Under St. 1918, c. 257, Section 187, subsections 23-31, now G.L.c. 79, Sections 23-31 inclusive, the petition of Herman was ordered to be tried with the petition of Nicklas to a jury at New Bedford. No answer or other pleading was filed by the respondent in either case. Under St. 1918, c. 257, Section 187, subsection 29, the jury found the total amount of damages sustained by the owners of such property to be $23,044, which includes damage and interest at four per cent from April 1, 1921, to May 7, 1924. Under the same provision of the statute the jury apportioned to Herman the sum of $12,083, and to Nicklas the sum of $10,961, which last sum is made up of an allowance of $3,372 for damages to the building of Nicklas, including therein interest at four per cent from April 1, 1921, to May 7, 1924; and the remainder, as the amount of damage to the leasehold estate, including interest as aforesaid.

At the trial, the petitioner introduced as a part of his case the testimony of the city clerk that the taking of the realty was by order of March 11, 1921, and that the entry for the purpose of construction was made April 2, 1921. At the conclusion of the petitioner's case, the respondent filed a motion in the Herman case to direct a verdict in the following language: "The respondent requests the court to direct the jury to return verdict for the defendant for the petitioner failed to file his petition within the time allowed by G.L.c. 79, Section 16, it appearing that `entry' was made April 1, 1921, and petition was filed April 27, 1922." This motion was considered by the judge after the introduction of the respondent's evidence as to value and at the conclusion of the presentation of the respondent's case, and was thereupon by said judge denied. The respondent duly filed a motion that the verdict be set aside and a new trial ordered for the following reasons:

"1. That the verdict is against the evidence and the weight of the evidence.

"2. That the verdict is against the law. "3. That the damages as found by the jury are excessive." After a hearing the judge made the following order: ...