Keith v. City of Brockton

C. Allen, J. The order passed by the city council was not for the laying out, alteration, or discontinuance of the way, but it was for specific repairs thereof, by changing the grade according to a plan which was referred to (Sisson v. New Bedford, 137 Mass. 255) ; and according to the general rule in such case, the application by a party aggrieved for a jury must be made within one year after such order is passed. Pub. Sts. c. 49, § 79. But the petitioner contends that he is entitled to an extension of time under the provisions of § 89 of the same chapter. This latter section was founded upon the St. of 1874, c. 341, § 1, which clearly did not include the.case of specific repairs, but was limited to the case of “ damages sustained by the laying out, widening, altering, relocating, or discontinuance ” of a way. When this section was incorporated into the Public Statutes, in § 89, above referred to, it was expressed as follows: “ A person aggrieved by the indemnity awarded to him, or by the assessment of his damages under this chapter, who omits to file his petition for a jury within one year, and who has not received, [620] at least sixty days before the expiration of such year, actual notice of the proceedings whereby he is entitled to such damage or indemnity, may within six months after his land is actually entered upon for the construction or alteration of a way, or after the actual closing of a way upon discontinuance, file his petition for the assessment of his damages by a jury,” etc. Now, the words “ under this chapter,” near the beginning of this section, would be broad enough to include an assessment of damages for specific repairs; but the later portion of the section shows that only cases of damages by the construction or alteration or discontinuance of a way are intended to be included, because the petition must be filed within six months after his land is actually entered upon for those purposes. There was no intention of changing the law as it already existed, or of extending the provisions of the St. of 1874, c. 841, § 1, so as to make them include a case of specific repairs. Petition dismissed.