Davenport v. Inhabitants of Dedham

Hammond, J. The auditor found as a fact that “ the petitioners have sustained no damage by reason of said decree or by the change in grade of said street prescribed thereby, unless it [384] be such damage as is due to the fact that the change of grade above referred to has made passage over said street to and from their said estate less convenient than it was before; that if the petitioners have sustained any damage by reason of the fact that their ownership and occupation of land on said street make it necessary for them to use the street more frequently than the general public, and by reason of the fact that the street is less convenient for use than it was before, such damage does not differ in kind, although it may differ in degree, from the damage which has been sustained by that portion of the public generally who may have occasion to .use said street ”; and ruled that for damages of this character the petitioners were not entitled to recover, and found for the respondent. At the trial in the Superior Court the auditor’s report was put in, and Davenport, one of the petitioners, having taken the stand as a witness, was asked by his counsel, what effect, if any, the change of grade in Sprague Street had upon the value of his land. This question was excluded, and the petitioners’ excepted. It does hot appear that the petitioners desired to show any other element of damage than those stated in the findings of the auditor. If, therefore, the rule of law stated by the auditor i§ correct, the petitioners were not harmed by the exclusion of the question. We are of opinion that the rule is as stated by the auditor, and that therefore the ruling of the court that the petitioners are not entitled to recover was correct. Where no land is taken neither St. 1890, c. 428, nor Pub. Sts. c. 49, §§ 16, 18, 68, 69, can be held to include such damages as are not special and peculiar. The reasons for this are so elaborately set forth in Proprietors of Locks & Canals v. Nashua Lowell Railroad, 10 Cush. 385, that it suffices to refer simply to that case. In Dana v. Boston, 170 Mass. 593, upon which the petitioners rely, it appears from an examination of the papers in the case that the damages claimed were of a nature special and peculiar, and the decision was that in such a case it was not necessary in a petition brought under Pub. Sts. c. 49, §§ 68, 69, that the land damaged should abut on the highway. In view of this conclusion upon the question of damages, it became unnecessary to pass upon the other ground of defence. Exceptions overruled.