Willard v. City of Boston
| Decision Date | 09 May 1889 |
| Parties | WILLARD et al. v. CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 9 1889
HEADNOTES
C.C Reed, for petitioner C.E. Willard.
Proctor Tappan & Warren, for other petitioners.
Wm. Gaston and W.B. Durant, for C.E. Dearborn, party interested as lessee.
This is a petition, under the forty-ninth chapter of the Public Statutes, for the assessment of damages for land taken for a highway. The only question argued is whether the proceedings upon it should be conducted under the eighteenth section, or under the twentieth and the following sections. This question is not properly before us on a motion to dismiss the petition. The allegation in the petition that the eighteenth section of the statute is applicable to the case is not an allegation of a substantive fact, which would prevent the court from entertaining the petition, although it might hold that the subsequent proceedings should be conducted under the twentieth section. If, as was stated at the argument, a prior petition has been filed by one of the parties in interest the defendant should avail himself of this fact by an answer in the nature of a plea in abatement. It does not appear upon the record before us and therefore we cannot regard it as a fact. The petition is sufficient, and upon the record transmitted to us the order dismissing it was erroneous. If this was merely a technical objection, and we were duly informed of all the facts in the case, we should be inclined to overlook it. But the question whether the proceedings shall be according to the eighteenth section, or according to the twentieth, must depend upon the state of facts shown to exist when the jury is impaneled. Perhaps we might assume that the petition correctly states the title to the land taken. But, as to the mortgage, the effect of which presents the most difficult question in the case, there is not a sufficient statement. It is merely stated that there is a mortgage of an undivided half, dated July 2, 1883. It does not appear whether it is a mortgage to secure a sum of money lent, or to secure some future contingent liability; whether there has been a breach of the condition; whether the mortgagee is or is not in possession; whether the mortgagee intends to appear as a party, or, as was intimated at the argument, intends to waive his rights. It will be settled at the hearing...
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Cornell-Andrews Smelting Co. v. Boston & P.R. Corp.
...535, and Providence, Fall River & Newport Steamboat Co. v. Fall River, 187 Mass. 45, 72 N. E. 338. The remarks in Willard v. Boston, 149 Mass. 176, 178, 21 N. E. 298, and Galeano v. Boston, 195 Mass. 64, 67, 80 N. E. 579, that the question is to be determined by the condition of the title a......
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Cornell-Andrews Smelting Co. v. Boston & P.R. Corp.
...pursuant to the recommendation of the commissioners (now R. L. c. 48, §§ 20-24). See Edmands v. Boston, 108 Mass. 535;Willard v. Boston, 149 Mass. 176, 21 N. E. 298;Providence, Fall River & Newport Steamboat Co. v. Fall River, 187 Mass. 45, 72 N. E. 338;Galeano v. Boston, 195 Mass. 64, 80 N......
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Cornell-andrews Smelting Co. v. Boston & P.R. Corp.
...Mass. 535, and Providence, Fall River & Newport Steamboat Co. v. Fall River, 187 Mass. 45, 72 N.E. 338. The remarks in Willard v. Boston, 149 Mass. 176, 178, 21 N.E. 298, and Galeano v. Boston, 195 Mass. 64, 67, 80 579, that the question is to be determined by the condition of the title as ......
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Cornell-andrews Smelting Co. v. Boston & P.R. Corp.
...pursuant to the recommendation of the commissioners (now R. L. c. 48, §§ 20-24). See Edmands v. Boston, 108 Mass. 535; Willard v. Boston, 149 Mass. 176, 21 N.E. 298; Providence, Fall River & Newport Steamboat Co. v. River, 187 Mass. 45, 72 N.E. 338; Galeano v. Boston, 195 Mass. 64, 80 N.E. ......