Hobart v. County of Plymouth

Wells, J. The right of the petitioner to have the jury consider his application for a change in the location of the way is not questioned. His request for a change in the location was not defeated on the ground of a defect in his application ; nor was he required to amend his application by the person presiding at the trial before the jury. Upon a suggestion to that effect, the petitioner voluntarily specified in writing the alterations asked for. The jury were instructed that they could make no alteration other than that prayed for by the petitioner. This we think was proper, and in accordance with the statute. Gen. Sts. c. 43, § 20. It was also ruled that the jury were confined to the termini upon the land of the petitioner, and could make alterations only between those termini. This ruling was correct, and in accordance with decisions of this court. Merrill v. Berkshire, 11 Pick. 269. Lanesborough v. County Commissioners, 22 Pick. 278. Gloucester v. County Commissioners, 3 Met. 375. For the same reasons, the testimony offered to prove that some change, other than that specified by the petitioner, would make the road more convenient for public travel than the location made by the commissioners, was properly excluded. The public convenience is not the ground upon which the authority to make alterations is given to the jury. That consideration is intrusted to the commissioners. The jury are not to disregard it in making such limited revision of the location as is within their power. But the ground of their action is relief to the individual petitioner, in connection with their consideration of the damages suffered by him by reason of the location. They are to regard the matter of his complaint; and may relieve the burden upon him, either by modifying the location upon his [165] land so as to make it less objectionable to him, or may increase the compensation allowed to him for the injury he suffers. The vote of the town could have no bearing upon the questions before the jury, and was properly excluded. The ruling that the new location operated as a discontinuance of so much of the old road as was not included in the new location, and “ not included in and necessary for the travel of other roads entering thereon,” was substantially correct, and gives the petitioner no ground of exception. The commissioners, in their report, do indeed state, in regard to the portion of the new location which crosses the petitioner’s land, that they “ then proceeded to locate a new highway.” But the whole proceeding, taken together, is one of mere alteration and new location of an old road. The petition, as recited in their report, prays for that and nothing else, except for the discontinuance of such parts as may thereby be rendered unnecessary. The location, as described in the report, begins and ends with alterations specifically. The intermediate portion must therefore be regarded as an alteration only, in its legal effect, notwithstanding the fact that it is called “ a new highway.” Goodwin v. Marblehead, 1 Allen, 37. The commissioners had no authority, upon such a petition, to lay out a new highway. Commonwealth v. Cambridge, 7 Mass. 158. The location which they did in fact make will be construed, if it can be, in such manner as to sustain its validity. Commonwealth v. County Commissioners, 8 Pick. 343. A discontinuance of so much of the old road as is not included in the new location results from the alteration, ipso facto, without any words of discontinuance. Johnson v. Wyman, 9 Gray, 186. Bowley v. Walker, 8 Allen, 21. The extent of land which would remain subject to the public easement, for the use of the road connecting with South Avenue, could not well be defined with more precision than it was by the ruling. The testimony of Mr. Paine, as to the petitioner’s admissions that it would not injure his premises to cut down the road one foot or more, in order to obtain material for construction of the alterations, was competent evidence against him, and properly admitted. [166] The inquiry as to what was specified in the return of the commissioners was properly excluded. The return itself was the best evidence of what it contained. It does not appear that the witness, examined as an expert, testified to anything that was prejudicial to the petitioner. The report shows no ground for exception upon that point. Bates v. Barber, 4 Cush. 107. The only remaining question relates to the evidence of an old wall which had once stood between the petitioner’s buildings and the centre of the highway. This was offered to show that the limits of the old road did not extend so far as to those buildings, and consequently that the petitioner was entitled to damages for the land between his buildings and the line of the wall, when taken for the new location. We perceive no reason why such evidence would not be competent upon that question. We infer from the report that the precise boundaries of the road were not known, or could not be made certain by the records or by monuments. As it appeared that this wall had not been in existence for thirty five or forty years, and the report proceeds to state that there was no other evidence in the case, or offered, to show the ownership'of the land in question, the provisions of the Gen. Sts. c. 46, § 1, would govern, and require the buildings to be deemed and taken to be the true boundaries of the highway. Morton v. Moore, 15 Gray, 573. Pettingill v. Porter, 3 Allen, 349. As the jury would not have been authorized, upon this testimony alone, to have found that the highway was limited by the line of the old wall, the petitioner has suffered no prejudice by the exclusion of the testimony. Davis v. Maxwell, 12 Met. 286. Bean v. Hubbard, 4 Cush. 85. The judgment of the superior court, accepting the verdict of the jury, is therefore affirmed.