Whitney v. City of Lynn

• Decision Date: 17 March 1877
• Citation: 122 Mass. 338
• Parties: Seth D. Whitney v. City of Lynn
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

122 Mass. 338

Seth D. Whitney v. City of Lynn

Supreme Court of Massachusetts

March 17, 1877

Argued November 9, 1876 [Syllabus Material] [Syllabus Material]

Essex. Petition, filed in April, 1875, to the Superior Court, for a jury to assess the indemnity for trouble and expense occasioned to the petitioner by the laying out of a street in Lynn over his land, which land was not entered upon or possession thereof taken by the respondent. Trial before Gardner, J., who reported the case for the consideration of this court in substance as follows:

The order for the laying out was passed by the city council on September 27, 1871, and on October 31, 1871, a notice was served on the petitioner by order of the mayor and board of aldermen, that the street had been laid out over his land that $ 3998.10 as damages had been awarded to him, and that he was allowed sixty days for the removal of any buildings fences or other erections on the land taken.

On or about November 29, 1873, the petitioner addressed a petition to the mayor and aldermen of Lynn, which was referred by them, with the concurrent vote of the common council, to the joint standing committee of the city council on laying out and altering streets. The committee made no report thereon, nor did the city council take further action thereon, unless it is included in the terms of a general order passed by the city council of that year, in concurrence, at their last meeting, on January 2, 1874, as follows: "Ordered, that all unfinished business, contracts and work in progress but not completed, with the papers relating thereto of whatever description, be and are hereby referred to the next city government." No action was taken by the city council of the year 1874 upon the petition. On or about June 1, 1874, the petitioner addressed another petition, being substantially a copy of his former petition, to the mayor and aldermen and common council of Lynn, which was referred by concurrent vote of those bodies to the appropriate committee, which committee reported an order on December 31, 1874, of that year, granting an allowance of $ 300 to the petitioner. This order was rejected in the common council.

The respondent contended and asked the judge to rule that the petition would not lie for the reason that it was not filed within the time limited by law. The judge refused so to rule, and ruled that the petition was seasonably filed. To this ruling the respondent excepted.

The petitioner offered evidence tending to show, among other things, that, in consequence of said laying out, he had been damaged by reason of his inability to sell his land in house lots, as he had contemplated; that he had previously caused plans to be made for laying out the land in lots, and had advertised the land for sale in 1870, and that in consequence of the probability that a street or way might be laid out, substantially as laid out the next year, he had withdrawn his advertisements, and taken no further steps towards selling his land, except that, in April, 1871, he sold four of the house-lots; that he had been subjected to uncertainty as to the use which he might make of the land, and to derangement of his plans; that he had suffered disquietude, vexation and annoyance from the action of the city government in the premises; that he had been put to trouble and expense in visiting Lynn, in seeing the mayor of the city about the matter, and in consulting counsel as to his rights, and employing agents and attorneys to ascertain and enforce such rights.

The judge, against the objection of the defendant, instructed the jury, among other things, as follows: "1. The petitioner must be a person claiming damages sustained in his property, by the laying out of this street. It appears by the record evidence that the defendant city had awarded to the petitioner about $ 4000, as damages sustained by him in his property, and there is evidence tending to show that during the two years after the taking, the petitioner claimed payment of the amount awarded to him as damages. This evidence, if believed, will warrant the jury in finding that the petitioner was a person claiming damages as required by the statute.

"2. You are to allow the petitioner full indemnity for the trouble and expense he has been put to by the proceedings of the city council in the laying out. In relation to the trouble the petitioner has been put to, you may consider the disquietude, vexation and annoyance he has been put to by the proceedings of the city council, by the laying out, and by the notice to him to remove his buildings, fences, &c so far as these have been shown to you by the evidence; the derangement of the petitioner's plans, if any, relative to his estate which he had made after the laying out, upon the assumption that his land so laid out was to be entered upon by the city for the purpose of constructing the highway the uncertainty in which the petitioner has been kept, if you find that he has so been kept, for the two years from the taking, as to whether the land was to be...