Hubbard v. Inhabitants of Webster

Devens, J. With the limitations under which the evidence offered by the petitioner was received, and the instructions given in relation thereto, we do not perceive that any injury can have been occasioned to the respondent, and its exceptions cannot be sustained. 1. The petitioner was permitted to testify that his cellar had been flooded previously to raising the grade of the way upon which it abutted, and to some extent since, by surface water, and was also permitted to state from how great a water-shed he was and had been liable to receive surface water. He was entitled to show the condition and situation of his land, and its relation in position to the surrounding territory, in order to show the whole effect in the alteration of the grade of the way upon it, even if in reference to surface water it had actually been benefited, and it must be presumed that the jury followed the instruction of the court that no damage should be awarded to him for such flooding. 2. While the respondent admitted the existence of Main Street and Union Street as highways, the petitioner was permitted to show the order by which Main Street was relocated in 1868, the orders for building a bridge, near the petitioner’s premises, which was erected between 1868 and 1871, the filling done in connection therewith, and the fact that the way continued of the same grade until 1873, in order to show its existence, limits and grade in 1873, when the raising of the grade complained of was made. By the admission of the respondent, this evidence of the location and grade of the highway did not become incompetent, and the [602] ruling of the court strictly limited its effect to the purpose of showing the condition of the way in 1873, at the time the fining commenced, the jury being instructed that the petitioner’s claim for damages must be confined to those sustained by the raising of the grade in 1873. 3. While the deed of the petitioner’s property was offered for the purpose of showing that he had a right of way adjacent to the premises, it was not admitted for this purpose, but only to show the location and relative position of the property alleged to be injured. For such a purpose it was admissible, and the jury were instructed that the petitioner could not recover for the effect upon the value of the way by the raising of the grade. The existence of a right of way was apparently shown by the deed, but it would not have been just that the petitioner should have been deprived of a proper and legitimate use of the deed of the property alleged to be injured, because the same deed also showed that he possessed another right of property for injury to which no damage could in this proceeding have been properly awarded him. Where proper instructions are given, it must be presumed that they are understood and followed by the jury. Raymond v. Nye, 5 Met. 151. Exceptions overruled.