White v. Franklin Cnty.

• Decision Date: 25 February 1931
• Parties: WHITE v. FRANKLIN COUNTY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 465

175 N.E. 92

WHITE

v.FRANKLIN COUNTY.

Supreme Judicial Court of Massachusetts, Franklin.

Feb. 25, 1931.

Appeal from Superior Court, Franklin County.

Proceeding by Mary C. White against the County of Franklin. Verdict for plaintiff for part of amount claimed, plaintiff's motion for judgment for amount of award by county commissioners was denied, and judgment was entered on the verdict, and plaintiff appeals.

Denial of motion and order for judgment affirmed.W. A. Davenport and W. L. Davenport, both of Greenfield, for appellant.

P. H. Ball, of Greenfield, for respondent.

RUGG, C. J.

Land of the petitioner was taken for a highway by the defendant by eminent domain. The county commissioners awarded her $500 as damages. She petitioned for the assessment of her damages by a jury. The jury assessed her damages in the sum of $432. She then moved that judgment be entered for the amount of the award of the county commissioners less the costs of the defendant. That motion was denied. Judgment was entered on the verdict. She appealed. Procedure governing the rights of the parties is set forth in these sections of G. L. c. 79: Section 6. ‘When a taking is made on behalf of the commonwealth, or of a county, city, town or district, the board by whom the taking is made shall, at the time when the order of taking is adopted, award the damages sustained by persons in their property by reason of such taking.’ Section 14. ‘A person entitled to an award of his damages under this chapter or the body politic or corporate bound to pay the same * * * may petition for the assessment of such damages to the superior court of the county in which the property taken or injured was situated.’ Section 16. ‘A petition for the assessment of damages under section fourteen may be filed within one year after the right to such damages has vested. * * *’ Section 22. ‘The trial shall be by the court unless one of the parties within the time prescribed in actions at law files a notice that he desires a trial by jury. * * * Judgment, shall be entered and execution issue as in actions at law.’ Section 36. ‘No petition brought under section fourteen shall be discontinued except by leave of court or by agreement of all the parties thereto; and any party thereto may prosecute the same.’ Section 38. ‘In all proceedings brought under section fourteen, if a petition is filed after an award of damages has been made and the damages are increased, or if no award has been made and the petitioner is found to be entitled to damages, he shall recover costs, which shall be taxed as in actions at law; otherwise he shall pay costs.’ Section 41. ‘If no petition under section fourteen is filed within the time limited, the award of damages shall be final and the amount thereof shall be paid upon demand, and if not so paid may be recovered in an action of contract.’ The foregoing statutory provisions bear the plain implication that the petition for a trial by jury is in the nature of an appeal from the initial award. That has been the holding of this court for a century and a third under statutes touching the same subject, and on this point differing in no essential particular from the present section 14. As early as 1798, it was said of St. 1786, c. 67, § 4, that ‘the application for a jury is very clearly in the nature of an appeal.’ Brown v. Haverhill, 3 Dane Abr. 263, 264. The force of that decision in this respect is not shaken by Gilman v. Haverhill, 128 Mass. 36. Substantially the same determination has been made in numerous, subsequent adjudications concerning this or closely analogous statutes. Morss v. Boston & Maine Railroad, 2 Cush. 536;Fitchburg Railroad Co. v. Boston & Maine Railroad, 3 Cush. 58, 80, 83;Worcester v. County Commissioners, 100 Mass. 103;Riley v. Lowell, 117 Mass. 76;Drury v. Midland Railroad Co., 127 Mass. 571, 577, 578;Danforth v. Groton Water Co., 176 Mass. 118, 57 N. E. 351. Nothing contrary to this was decided in Fall River Railroad Co. v. Chase, 125 Mass. 483, where a different point was presented for determination. It is the essence of an appeal of this nature that it vacates the action from which appeal is taken. Unless otherwise provided by the statute, that action can be restored only by order of the superior tribunal. It would be contrary to every dictate of fair...