Wellington v. Boston & M.R.r.
| Decision Date | 01 March 1893 |
| Parties | WELLINGTON et al. v. BOSTON & M.R.R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John
D. Long and B.E. Perry, for petitioners.
Sigourney Butler, for respondent.
As there must be a new trial upon other grounds, we need not decide whether the respondent can take advantage of the irregularities in procuring the jury. The statute (Pub.St. c 49, § 39) has been construed to exclude jurors living in the town where the lands lie, and to authorize requisitions upon any three towns of the county which adjoin that town, without reference to the question of proximity to the lands. Wyman v. Railroad Co., 13 Metc. (Mass.) 316, 324; Brown v. Railroad Co., Id. 327, note; Meacham v Railroad Co., 4 Cush. 291, 295; Shattuck v. Railroad Co., 6 Allen, 115; Reed v. Railroad Co., 105 Mass. 303. Requisitions were properly made upon three towns but, in consequence of an objection in advance of the hearing, the sheriff irregularly omitted to notify two of the men drawn, and made a requisition for jurors from a fourth town. When objection was made to the list so constituted, instead of dismissing the jurors from the fourth town, he excused those from a town upon which one of the original requisitions was made. In so doing he chose arbitrarily between jurors present, and the expense, which in these cases is borne by the parties, was increased. There was no error in returning the talesmen. The statute, (Pub.St. c. 49, § 41,) which prescribes the course to be pursued when enough jurors are not present, directs merely the return of "suitable persons to supply the deficiency," and does not require them to be residents of the nearest towns. It is only necessary that they shall be qualified and liable to serve in that county. If the sheriff had required the challenges to be made before the choice of the foreman, all the jurors who served would have been able to participate in the choice.
2. Evidence of the declaration of the general manager as to the purpose to which the land was to be put was incompetent. He was not an agent of the corporation for the purpose of making admissions. Railroad Co. v. Ordway, 140 Mass. 510, 5 N.E. 627; Williamson v. Cambridge, 144 Mass. 148, 10 N.E. 790; Leistritz v. Zylonite Co., 154 Mass. 382, 28 N.E. 294; Richstain v. Washington Mills Co., 32 N.E. 908, (Essex, Jan., 1893.) The evidence, however, was of little importance, as the statement was merely that the land was to be used for a purpose for which the respondent could lawfully use it, and the jury could properly consider the possibility of such a use.
3. The award of the commissioners was properly excluded. It was offered only as showing their estimate of the damages, and not because it contained an order affecting the damages, as was the case in White v. Railroad Co., 6 Cush. 420, and in Chapin v. Railroad Co., Id. 422. To admit such an award for the purpose for which it was offered in the present case would be to introduce the opinion of the commissioners, without affording the petitioners an opportunity for cross-examination, or enabling the jury to weigh the opinion in connection with the appearance of the commissioners and their means of knowledge. Being merely the decision from which, in effect, the petitioners had appealed, it was immaterial.
4. The verdicts must be set aside because the jury were permitted to award damages upon an erroneous view of the law. There are three separate verdicts. The claimants join in the petition but their rights are distinct. They represent themselves as severally dissatisfied with the estimate made by the commissioners of their several damages by the taking of their respective lands, and each asks for the damage done by the taking of his own land, and not for damage to his land by the taking of the land of the others. The petitioners own much of the village of Wellington and some outlying lands. When the railroad was built, about 1845, the locality was a farm of some 150 acres, owned in common by two brothers, James and Isaac Wellington. The railroad skirted the line of demarcation between a swamp on the east and the upland, which is now the village. The Medford branch was built about 1852, leaving the main line at the village. The Wellingtons settled for their damages when the main line and the branch were built. About 1853 they divided the farm into four parts, each taking two in severalty, and the tracts were then cut up into house lots, which were put upon the market. Many of them have been sold and built upon, and others have been sold, but remain vacant. The streets dividing the land have been wrought and are in use, many of them having concrete walls and shade trees. Middlesex avenue, a county way, runs through the village nearly parallel with the main line of railroad, and at a distance varying from about 1,200 to 400 feet. The lands now taken are on the village side of the main line, and are a strip of marsh 100 feet wide, belonging to James E. Wellington, a strip 100 feet wide at its south end and 30 feet wide at its north end, belonging in common to James E. Wellington, Angelina W. Crosby, and Adrianna W. Kidder, and another strip, 123/4 feet wide, separated from the second by the station grounds, and owned by James E. Wellington as trustee under the will of Isaac Wellington. This strip is entirely within Craddock avenue, one of the streets dividing the land into house lots, and is on the opposite side of the street from the lots. The narrow part of the second parcel is also within the same street, and on the opposite side from the lots. The rest of the second parcel was taken from the rear of lots...
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