Riley v. City of Lowell

Gray, C. J. The St. of 1869, c. 351, § 7, provides that all •persons damaged in their property by any acts done in carrying into effect the powers granted to the city of Lowell by that statute for the purpose of supplying the city with water, shall have the same remedies as are provided in o. 43 of the Gen. Sts. for persons damaged by the laying out of highways. Such damages must therefore be estimated by the county commissioners in the first instance, and a trial by jury can only be had upon an application in the nature of an appeal from their decision. Gen. Sts. c. 43, §§ 14, 19. Worcester v. County Commissioners, 100 Mass. 103, 106. The St. of 1873, c. 261, allowing a trial by jury to be applied for and had in the Superior Court, instead of upon the warrant of the county commissioners and under the superintendence of the sheriff, does not dispense with the previous estimate of damages by the county commissioners as a necessary prerequisite to any application for a jury. In the present case, no such action of the county commissioners having been had, the Superior Court had no jurisdiction of the subject matter, and the objection might be taken at any stage of the proceedings. Exceptions overruled.