Wilbur v. City of Taunton

Colt, J. The Gen. Sts. c. 44, § 19, provide that “ when an owner of land adjoining a highway or town way sustains dam [524] age in his property by reason of any raising, lowering or othei act, done for the purpose of repairing such way, he shall have compensation therefor.” This right is confined to the owner of land adjoining the street which is repaired. There is no right to compensation beyond what the statute gives, and no damages can be had for injury occasioned by repairs on other streets. Jamaica Pond Aqueduct v. Brookline, 121 Mass. 5. Castle v. Berkshire, 11 Gray, 26. In his petition to the mayor and aldermen of the city, as well as in his petition ta the Superior Court, the petitioner alleges in substance that he owns land on both sides of Arlington Street, which is injured by repairs done on Arlington Street and Purchase Street and School Street. The form of the allegation implies that these three streets are separate and different streets. If they are so, then plainly damages can be recovered only for the repairs on Arlington Street. It is not necessary now to -decide how it would be if, upon proper allegations in the petition, it should appear that these three streets constituted only one single street, used for a continuous line of travel, though called by different names in different portions of its length. In former times such streets were common and possibly may still be found. Arnold v. Cambridge, 106 Mass. 352. The verdict in this case must be set aside on another ground; the ruling that the petition to the mayor and aldermen did not conform to the provisions of the statute, followed by directing a verdict for the defendant, was erroneous. The petition in question contained all the allegations necessary to give jurisdiction to and call for the action of the mayor and aldermen. It alleges the petitioner’s ownership of land adjoining one of the streets named, and damage occasioned by the repairs of that street, with a prayer for compensation. If he is confined by law to that one street, then this is a petition for damages for repairs in that street only. The prayer for damages for repairs on other streets, upon which he was not alleged to be an owner, was mere surplusage, which could not defeat his valid claim, and which could not have prejudiced the rights of the defendant on the trial of the question. In proceedings of this description, strict rules of pleading are not to be applied. It is enough if the requirements of the stat [525] ntes are substantially complied with in the allegations which set forth the petitioner’s claim. Verdict set aside.