Wheeler v. City of Fitchburg

0. Allen", J. The discontinuance of a portion of the way as laid out does not have the effect to cut off the petitioners’ right to damages for the taking of their land, which was included in the portion of the way so discontinued. Where a way is laid out over the land of several persons, an entry for the purpose of constructing any part of the way is deemed a taking of possession of all the lands included in the laying out made upon the same petition. Pub. Sts. c. 49, § 88. It was admitted that such entry had been made before the filing of the petition, though not upon land of the petitioners. By virtue of the statute, such entry is deemed to be a taking of possession of the land of the petitioners; and the taking of possession gives them a right to damages. This would be very clear, but the respondent makes an ingenious argument to the effect that such was not the true construction of the statutes in force prior to the Public Statutes, and that by the enactment of the Public Statutes it was not intended to change the law. But the same construction should be given to the statutes in force prior to the Public Statutes. Under the St. of 1847, c. 259, and the preceding statutes, if a man’s land had been entered upon and possession taken for a way, he had a vested right to his damages; but otherwise 352 not. New Bedford v. County Commissioners, 9 Gray, 346, 349. The St. of 1862, c. 203, required possession of such land, that is, the land of each owner, to be taken within two years, or else the location as against him should be void. The St. of 1869, c. 303, was a substitute for the St. of 1862, c. 203, and closely followed it in all the earlier portion, but added, by way of proviso, that an entry for the purpose of constructing any part of the laying out should for the purposes of this act be deemed a taking of possession of all the lands included in the laying out upon the same petition. That is to say, this statute in the first place provided in effect that possession must be taken of the land of each owner' within two years, or else the laying out should be void as to him; and then added, that entry for the purpose of constructing any part should be deemed a taking of possession of all the lands for the purposes of this act, namely, for the purpose of saving the location. Poor v. Blake, 123 Mass. 543. It was not necessary for these later statutes to express in terms that the consequence of taking possession of a man’s land would be to entitle him to damages, because that was plain and had been settled by the decision already cited. New Bedford v. County Commissioners, 9 Gray, 346. This right to damages upon the taking of possession was not impaired by the St. of 1862, c. 203, or by the St. of 1869, c. 303. In the Pub. Sts. c. 49, § 88, the meaning of the statutes as they stood was more plainly expressed. Upon the construction contended for by the respondent, a town by making an entry upon any part of the land included in the proposed way might hold the land of all the other owners, subjected to the possible servitude for all time, with a right of discontinuance at its own pleasure, but the owner would have no right to damages until the town should actually enter upon his land. Exceptions overruled.