Peterson v. City of Waltham
| Decision Date | 04 January 1890 |
| Citation | 150 Mass. 564,23 N.E. 236 |
| Parties | PETERSON v. CITY OF WALTHAM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 4, 1890
HEADNOTES
B.B Johnson, for plaintiff.
Geo. L Mayberry, for defendant.
This is an action of tort commenced by writ dated November 25, 1887, returnable on the first Monday in January, 1888. The writ contained no declaration, but the declaration was filed when the writ was entered on the return-day. Nothing was filed in the clerk's office until then. When the case came on for trial, the plaintiff asked for leave to amend his process by making it a petition for a jury to assess damages for land taken for a public way; and the court, against the objection and exception of the defendant, allowed the plaintiff to amend his action into a petition for a jury; and the plaintiff, on the 27th day of December, 1888, filed such a petition.
The first question is whether the court had authority to allow the amendment. The petition seeks for the assessment of damages caused by the taking of land for public ways laid out on the 29th day of November, 1886, and the 8th day of October, 1887. No action will lie for taking land for public ways in the manner prescribed by statute. The only remedy for a person aggrieved is the petition provided for by statute. Pub.St. c. 49, §§ 32, 105, provide that a party aggrieved may have a jury to determine the matter of his complaint upon application by petition to the superior court. Upon such petition notice is to be ordered by the court. Section 106 provides that the petition may be filed in the clerk's office in vacation, and that such filing shall be deemed the commencement of proceedings. Section 33 provides that the application may be made at any time within one year from the adoption of the order. This applies to the orders of location in this case, and limits the time within which the petition could be filed and proceedings commenced to one year from the respective orders. Eaton v. Inhabitants of Framingham, 7 Cush. 245; Loring v. Boston, 12 Gray, 209; Brookline v. Commissioners, 114 Mass. 548. If the court had power to change this action of tort into proceedings for damages under the statute, it must be by virtue of some authority by which it could disregard the provision of the statute that proceedings for damages shall be commenced by petition filed in court, or in the clerk's office, within a...
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...has no jurisdiction to entertain proceedings for relief, begun at a later time or prosecuted in a different method. Peterson v. Waltham, 150 Mass. 564, 23 N. E. 236;Lancy v. Boston, 185 Mass. 219,70 N. E. 288;Partridge v. Arlington, 193 Mass. 530, 79 N. E. 812;Wheatland v. Boston, 202 Mass.......
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L'Huilier v. City of Fitchburg
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