Buck v. Inhabitants of Great Barrington

Sheldon, J. The respondent’s -contention is that the petitioner’s premises did not in any legal sense abut upon the discontinued portion of the highway, and therefore, as no land of hers was taken, she is not entitled to recover any damages under the provisions of K.. L. c. Ill, § 153, now St. 1906, c. 463, Part I, § 37, that “ all damages which may be sustained by any person in his property by the taking of land for or by the alterations of the grade of a public way, or by an abutter thereon by the discontinuance of such public way, to the same extent as damages are recoverable by abutters on ways discontinued by towns, shall primarily be paid by the city or town.” - The petitioner subject to the public easement owned the land under the street; the respondent asserts that no other part of her land abutted upon the discontinued portion of the street, and contends that for this reason she could not be regarded as an abutter thereon. Nichols v. Richmond, 162 Mass. 170. But the discontinued portion of the road was indicated on the map or plan which was filed with the commissioners’ report as “ parcel A ”; and an inspection of that plan, as shown by the copies annexed to the bill of exceptions, shows that a considerable part of the petitioner’s premises, outside of what was included in the public street, did abut directly upon the discontinued portion of the street. The facts that the whole of the street was within the boundary lines of the location of the railroad, and that the discontinued portion of the street was taken for railroad purposes by a subsequent clause of the commissioners’ report, are not material. Under these circumstances the plaintiff, being an abutter on the discontinued way, is entitled to maintain her petition; Webster v. Lowell, 142 Mass. 324; and as the damages which she seeks to recover are merely for the discontinuance and its consequences, the statute already quoted gives her a remedy against the town. The parties disagree wholly upon the question whether any part of the petitioner’s premises outside of the public street did abut directly upon the discontinued portion of that street. The plan annexed to the respondent’s brief would seem to bear out its contention ; but we are bound by the recitals of the bill of exceptions and the copies annexed thereto of the plan put in evidence at the trial. [376] It follows that the requests for rulings made by the respondent were properly refused. None of them was applicable to the facts of the case. Exceptions overruled.