Garvey v. Inhabitants of Revere

Lathrop, J. 1. The first question presented is whether the petition was properly filed with the selectmen. The evidence was that the petition was taken to the office of the board of selectmen in the town hall at Revere, at a time when the board was not in session, and was handed to one Andrews, who was a member of the''board of selectmen, in the presence of two other members of the board. We are of opinion that this was sufficient. The petitioner had done all that she could do, and if the selectmen failed to make a record of the fact of the filing, or otherwise failed in their duty, such failure cannot affect the petitioner. Erskine v. Boston, 14 Gray, 216, 217. Sisson v. New Bedford, 137 Mass. 255. See also Orne v. Barstow, 175 Mass. 193. 2. On January 2, 1900, a location was granted to the Lynn and Boston Railroad for a double track on Ocean Avenue, in the following terms: “ The grade of Ocean Avenue between Beach Street and Revere Street shall be raised to a grade to be established by the town, and said railroad will grade that portion of Ocean Avenue occupied by their tracks and the space between the tracks and eighteen inches outside the tracks, to the satis [547] faction of the board of selectmen.” This location was accepted by the board of directors of the railroad. The street was paved to the width required by the grant of location, and the level of the street was raised under the direction of the superintendent of streets about twenty-two inches above the level previously existing. It did not appear by the records that the grade of Ocean Avenue had been legally established at any time, or that the existing grade had been changed. It was found that the changes in 1900 were made by the direction of the board of selectmen, who instructed the town engineers to draw plans making the grade high enough properly to drain the street, and to protect the pipes from freezing. The tracks were placed in the middle of the street. It is obvious that what was done in grading the street between the location of the railway and the petitioner’s land was done in the way of ordinary repairs, and that the petitioner had a right to maintain her petition. Proctor v. Stone, 158 Mass. 564, 569. McManus v. Weston, 164 Mass. 263. Simpson v. North Adams, 174 Mass. 450. The case is not one of specific repairs, nor does it fall within Vigeant v. Marlborough, 175 Mass. 459, and Underwood v. Worcester, 177 Mass. 173, relied upon by the respondent. 3. At the trial the respondent offered to prove that the raising of the grade of Ocean Avenue was necessary in order-that the system of drainage, which was put in afterwards, but which was not included in the order for the alteration and had not been authorized at the time, although it was a part of the entire scheme which the engineers had in mind in making the changes, might be put in; and that the system of drainage, which was in fact subsequently put in, and which did effectually drain the surface of the street, could not have been put in if the street had not been raised as it was raised. This evidence was excluded. We are of opinion that this evidence was rightly excluded. The measure of damages was the difference between the value of the petitioner’s property immediately before the change in grade and its value immediately after, less the special benefit and advantage to her estate caused by the change of grade. The reasons which induced the municipal authorities to change the grade of the street are not material in determining either [548] the damage sustained by the petitioner or the benefit received by her. 4. “At the conclusion of the evidence at the trial, the respondent requested the court to instruct the jury that if they should find that after the work described in the petition was completed, said work had rendered surface drainage or the laying of sewers possible, whereas it was impossible before; or if they should find said work rendered surface drainage easier or more efficacious than it was before said work was completed, then the jury should take that fact into consideration in estimating the benefits which the petitioner’s land received from the alleged alterations on Ocean Avenue, and further asked the court to instruct the jury that in estimating the benefits received by the petitioner from the alterations on Ocean Avenue, the jury should consider the laying of the drain in said Ocean Avenue. The court refused to give the rulings requested, but instructed the jury in substance that while they might in passing on the question of damage or benefit take into consideration the fact that the town had the right to put in such things as drains and sewers at any time in the future, they could not consider the fact that such right had since been exercised after the order of alteration, as the rights of the parties became fixed upon the passing of that order. To this refusal the respondent duly excepted.” We are of opinion that the rulings requested were properly refused, and that the ruling given was sufficiently favorable to the respondent. It was found that the work subsequently done, such as the making of sidewalks and the laying of the drain and sewer, were under such circumstances as permitted the respondent, under the Public Statutes, to lay a special assessment upon the petitioner’s land, for these improvements. It therefore would be unjust and inequitable to allow the benefit to the petitioner’s land from these improvements to be set off against the petitioner’s claim. Exceptions overruled.