Whitney v. City of Lynn

Endicott, J. No actual possession was taken by the city of any portion of the land over which the way was laid out, for the purpose of constructing it, within two years from the time when the right to take possession accrued. It is conceded by the respondent that the notice to the petitioner to remove his buildings was not an entry for the purpose of constructing the way within the meaning of the St. of 1869, o. 303. The laying out was therefore void, as against the owner of the land, and the petitioner, on application to the city authorities of Lynn, was entitled to indemnity for damages sustained by reason of the proceedings. Gen. Sts. c. 43, §§ 14, 63, 81. In November, 1873, soon after the two years had expired, he filed such a petition. It was referred in December, 1873, by the city council to the next city government, and it does not appear that any action was ever taken upon it. This reference was in no sense a refusal to assess, and the petitioner was not bound to apply for a jury within a year from that time. In June, 1874, the petitioner filed another petition, which was substantially a copy of the first. This was acted upon and an assessment • oi [343] indemnity refused in December, 1874. The subject matter and the relief asked for in both petitions were the same, and it was immaterial which was finally acted upon. The refusal to assess was a refusal to assess the indemnity asked for in both petitions. The court properly ruled that the application for a jury in April, 1875, was within the year allowed by the Gen. Sts. c. 43, § 73. At the argument but two objections were urged to the instructions given to the jury: 1st. That, in determining the trouble to which the petitioner had been put, the jury should not have been allowed to assess damages for the “ disquietude, vexation and annoyance ” to which the petitioner had been subjected by reason of the proceedings, and for the “ uncertainty” in which he had been kept upon the question whether the way would be laid out. 2d. That the petitioner’s trouble and expense in visiting Lynn, employing counsel and conferring with the mayor in relation to the proceedings while the laying out was in force, were not the subject matter of damages. The statute provides that any person claiming damages shall have full indemnity for the trouble and expense to which he has been put by the proceedings. Gen. Sts. e. 43, §§ 14, 63. The respondent contends that the words “ vexation,” “ disquietude,” “annoyance,” “uncertainty,” as used by the learned judge, refer to conditions of mind, and are not the subject matter of damages within the meaning of the statute. We are of opinion that the objection is well taken. The word “ trouble ” in the statute refers to trouble from which some material or pecuniary injury results, involving labor and the expenditure of time, or occasioning inconvenience to the owner in the use and occupation of the land; all of which may be estimated in damages by a standard common to all cases. But mental troubles, so difficult to estimate by any pecuniary standard, and which may vary in different individuals, according to their temperament or health, do not come within the meaning of the statute, and are not the subject matter of damages. The other objection must be overruled. The petitioner’s trouble and expense in visiting Lynn, employing counsel and conferring With the mayor, come clearly within the statute. Verdict set aside.