Childs v. County of Franklin

Colt, J. Application for a jury to revise the judgment of the county commissioners in the assessment of damages, caused by the laying out of a way, must be made within one year from the adoption of the order of location, unless there has been a suit instituted in which the legal effect of the proceedings is drawn in question. Gen. Sts. c. 43, § 22. When a highway is laid out, the commissioners are required in their return thereof to state the damages estimated by them, and the share of each person separately. Gen. Sts. a. 43, §§ 13, 14. But it is provided that they shall not order such damages to be paid until the land has been entered on for the purpose of constructing the way. It has been decided that the fact that no damages are allowed in the return of location is equivalent to a statement that, in the opinion of the commissioners, no damages have been sustained. It is treated as a judgment against the claim; and if a party is aggrieved thereby, he must petition for a jury within the time limited, or be deemed to acquiesce in the judgment. Monagle v. County Commissioners, 8 Cush. 360. Hildreth v. Lowell, 11 Gray, 345, 352. The limit of one year, within which application to revise must be made, has reference to the time of making the final order laying out the road, which is required to be recorded as such. Wood v. Quincy, 11 Cush. 487, 494. In the case at bar, the final order laying out the way was adopted by the commissioners on September 27, 1876, and duly recorded. An application for a jury might have then been made, notwithstanding the provision which forbids the issuing of an order for the payment of damages, and takes away from the landowner the right to demand the same, until the land is entered on. It has been so decided by this court. Harding v. Medway, 10 Met. 465. Russell v. New Bedford, 5 Gray, 31. 99 The petition in this case was not filed until after the expiration of a year from the passing of the final order of location. The petitioner relies on the order to the clerk, passed in December following, by which the latter was required to draw his warrant on the treasurer of the county for the payment of damages to the persons named in it. He contends that the date of this order fixes the time from which the period of limitation is to be reckoned. But this was not an order, or any part of an order, of location. It does not purport to be even an assessment of damages. It is simply an order for the payment of damages to the persons named, under § 14; an order which could not be legally passed, unless there had been a previous final order of location, accompanied by an assessment of damages, and an entry on the land for the purpose of construction. The list which accompanies the order contains the names of those who appear to be entitled to damages by the location of several different roads under several different petitions, including some who were damaged by the road here in question. The records show no assessment of damages whatever on account of the laying out of this road; and the order for the payment of damages to any one seems to have been unwarranted and irregular. But whether it were so or not, the result, as to the petitioner and his rights, is not affected thereby. See Goddard v. Worcester, 9 Gray, 88. Judgment affirmed.