Plympton v. Inhabitants of Woburn , 77 Mass. 415 ( 1858 )

Dewey, J.

The single objection taken to the rulings of the sheriff is to his exclusion of the testimony offered by the petitioners to show what it would cost to fill up the space between the travelled way, as graded and made, and the line of the petitioners’ adjoining land, with gravel or earth. If in any aspect of the case, and of the questions in issue before the jury, this testimony would have been competent, it ought to have been admitted.

The report of the case states that the question of enhanced value to the land of the petitioners, by reason of making the road, was in issue, and the evidence was conflicting upon that point. As bearing upon that question, it seems to the court that the proposed evidence was competent and ought to have been admitted. It is not because the landowner has a right to set up a claim for the expense of filling up the space between the travelled way and his land, as a substantive cause of damage, but as affecting the question of the benefit to his property by reason of laying out such highway, which benefit is by the Rev. Sts. c. 24, § 31, to be considered in estimating his damages. In this aspect the evidence has a bearing, and was competent for the consideration of the jury with all the other evidence in the case. Verdict set aside.