Sexton v. Inhabitants of North Bridgewater

• Decision Date: 28 October 1874
• Citation: 116 Mass. 200
• Parties: James Sexton v. Inhabitants of North Bridgewater
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 200

James Sexton v. Inhabitants of North Bridgewater

Supreme Court of Massachusetts

October 28, 1874

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Plymouth. Petition to the county commissioners for a jury to assess damages for the taking of land by the respondent to lay out a town way by widening and straightening a private way extending from Main to Montello street in North Bridgewater. At the trial before a sheriff's jury, evidence was introduced to prove that a worked passage way passing the petitioner's land from Montello Street to Main Street, and more or less used by the petitioner and other abutters, had existed for about twelve years previous to the laying out the town way; that the town way in question was laid out over this passage way, and the way widened over the petitioner's land so that the line passed through his dwelling-house. It was admitted that the title of said way was in the heirs of Nathan Hayward, deceased, and lots, on which buildings had been erected, had been conveyed to abutters by said heirs, upon condition that said way should remain open forever; but it did not appear that any such conveyance had been made to the petitioner.

The petitioner put in evidence a certified copy of the vote of the defendant town, by which it appeared that the town had voted to accept the St. of 1869, c. 169, § 1-3.

The respondent called as a witness one of the selectmen of North Bridgewater, who was also an assessor; and after he had testified that the petitioner's estate was increased in value by the laying out of the way, the respondent's counsel was permitted to ask, the petitioner objecting, "What is the difference in the actual market value of the petitioner's estate, before and after the laying out of the town way in question, supposing the town way is to be built?" to which the witness answered, "One thousand dollars is a moderate estimate of the increased value."

The respondent called Frederick Howard as a witness, and after he had testified, the petitioner objecting, that in his opinion the petitioner's estate was worth three times what it was without the road, the respondent was permitted to ask, the petitioner objecting, "What are the facts and reasons for your opinion?" to which the witness answered, "Before the road was laid out the petitioner had no right of way from that lot over this land. The basis of my opinion is that he had no right in this way." On cross-examination the witness testified that in his opinion the laying out of the way increased the value of the estates on the way 33 per cent. Except the petitioner's deed of the premises, no evidence of title, except by parol, was introduced by either party.

The presiding officer at the request of the respondent, the petitioner excepting, instructed the jury as follows:

"1. If the laying out of the town way has left the petitioner's estate of more value in the market than it was before the laying out, and this benefit is not one which is common to the petitioner and others owning land on and in the vicinity of said way, such benefit is to be set off against any damage sustained by the petitioner.

"2. The uses to which the strip of land taken from the petitioner, for the purpose of the town way, would probably be applied for a sidewalk or other use, beneficial to the petitioner, may properly be taken into consideration in estimating the benefit to be set off against the damage done to his estate by the taking.

"3. In estimating the effect upon the market value of the estate of the petitioner occasioned by the laying out of the town way and the taking of a small portion of said estate therefor, the jury are to consider the land so taken, not as it may now lie, or may have lain, at the time of the laying out, unfitted for use as a street, but according to the prospective use of the street when wrought and fitted for use, as part of the street, for a sidewalk or carriage way. The jury are to consider the consequences of such taking of part of the land, when thus fitted as part of the street, to the residue of the petitioner's land.

"4. If prior to the laying out of the town way, and since 1859, a way or street in substantially the same place had been opened by the owners of the land, and the public had since been permitted to use the same, such way did not thereby become a public or town way until the same was laid out and established by the town according to the ordinary mode prescribed by law.

"5. Such throwing open of the way in this case, and permitting the public to use it, did not amount to a grant or dedication of any permanent right to the petitioner, nor impose any duty or obligation whatever upon the owners of the land, to refrain from obstructing the way. If the petitioner with others might pass over the way while it remained open, the owners might, as against him, shut it up at any time, and his right to pass over it would cease.

"6. In estimating the effects of the laying out of this road upon the petitioner's remaining land, unless it appears affirmatively that the petitioner had before the laying out some legal right of way from his said land on and over the land included in the laying out, then the jury are to proceed upon the basis that the petitioner had no such right of way.

"7. The jury cannot regard only the use to which the petitioner's estate is now applied, and award him a sum sufficient to secure him in that mode of enjoyment for the future; they must take into consideration the more advantageous use to which the property may be applied, in consequence of opening the new street.

"8. The proper inquiry is, what is the value of the property before and after the road is laid out, for the most advantageous use to which it may be applied. In estimating the influence of the laying out of the street upon the value of the land, the jury are not to regard so much the intention of the owner in relation to the future use, as the purpose to which the property may be applied, in the hands of one who is disposed to make it yield the greatest income. What price will it bring in the market? is the proper inquiry."

The petitioner's counsel, after the evidence was closed, requested the presiding officer to give the following instructions to the jury:

"1. That, if the jury are satisfied that the owners of the soil over which the so-called private way or street passed adjoining the petitioner's land, previous to the laying out in this case, opened the same for the use of the public as a highway or passway, and it had been so used by the assent of such owners for a period of twelve years or more, they may infer that such way was dedicated to the public use; and the petitioner and other abutters would have a right to pass over the same to and from their lands, especially if the original owners had sold land abutting on such way, binding themselves to keep the same open.

"2. That the jury may consider whether it is probable that the way in question would continue open to all the public as a common way, as it was used, and existed at the time of the laying out.

"3. That there being no grade named in the laying out, the jury should estimate the damages upon the basis of the continuance of the present grade, and not upon any speculative grade in the minds of witnesses, and that if there should hereafter be a change of grade, beneficial to his land, the petitioner may be liable to an assessment.

"4. That...