Warner v. City of Pittsfield
| Decision Date | 10 October 1918 |
| Citation | 120 N.E. 379,231 Mass. 138 |
| Parties | WARNER v. CITY OF PITTSFIELD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Suport from Superior Court, Berkshire County; Frederick Lawton, Judge.
Application by Augusta Warner against the City of Pittsfield for the assessment of damages to land abutting on a public way caused by the making of repairs. On report to the Supreme Judicial Court. Judgment for plaintiff.
Frederick M. Myers and Thomas F. Cassidy, both of Pittsfield, for plaintiff.
John Barker, City Sol., of Pittsfield, for defendant.
This is an application under R. L. c. 51, § 16, by the owner of land abutting on a public way for the assessment of damages caused by the making of repairs thereon.
The material facts are that an earlier petition for the assessment of damages arising from this same cause was filed in the superior court and came on for trial in April, 1917. The judge then ruled that in such a proceeding ‘a certain notice’ must be given to the mayor and aldermen and that the ‘actual notice given in this case was not a proper notice, and therefore this suit is not properly brought.’ It was agreed that the ‘notice * * * was insufficient.’
When an owner of land sustains damage by any act done by way of repair upon a way, the first step which he must take in order to have his damages assessed is to file a ‘petition for compensation with the mayor and aldermen or selectmen or road commissioners, after the commencement and within one year after the completion of the work.’ R. L. c. 51, § 15. Manifestly it is not accurate to speak of such a ‘petition for compensation’ as a ‘notice.’ It is in the nature of a proceeding and requires the board to which it is presented to undertake in the exercise of a quasi judicial function to determine the amount of the damages. No notice is required by the landowner who suffers damages by repairs upon a way. The filing of the ‘petition for compensation’ is the first act to be done by him. Therefore, although the statement in the record is not clear, it seems fairly inferable that the ruling of the judge on the first petition, founded as it appears to have been upon the agreement of the parties as to want of ‘notice,’ in substance and effect was the equivalent of an instruction that ‘no petition for compensation’ having been filed with the mayor and aldermen ‘after the commencement and within one year after the completion of the work’ which caused the damage complained of, as required by the statute, no application for a jury at the bar of the superior court for the assessment of damages could be maintained under R. L. c. 51, § 16. So construed the ruling was right and the agreement of parties intelligible; otherwise they have no meaning.
The petitioner on August 7, 1917, filed a new application for the assessment of her damages arising from the same repair of way described in the earlier petition. The defendant seasonably filed a plea in abatement setting out the pendency of the earlier application for the assessment of damages arising from the same cause, and also pleaded in bar the judgment in that proceeding, if it had gone to judgment. It is stated in the record that ‘after the trial on the first petition and before bringing the second petition, the plaintiff seasonably served sufficient notice on the proper officers of the city.’ For the reasons already stated we construe this to mean that the petitioner seasonably filed ‘a petition for compensation with the mayor and aldermen.’
The plea in abatement was overruled rightly. Although the judge ruled that the earlier proceeding could not be maintained, the damages were assessed by the jury and then the entry was made on the docket of the following tenor:
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