Snow v. Inhabitants of Provincetown , 109 Mass. 123 ( 1872 )

Colt, J.

There is nothing in the report of the presiding officer which justifies setting aside the verdicts of the jury awarding damages to the petitioners for raising the grade of Vine Street. It is not to be inferred from the facts stated, that the petitioners wil] receive under these verdicts damages which were paid them when the street was located or widened. The town voted to grade the street under an article in the warrant in the year 1870, nearly two years after the proceedings for widening and straightening it were accepted. The two proceedings were entirely independent of each other; and since the case of Callender v. Marsh, 1 Pick. 418, the statute has provided that “ an owner of land adjoining a highway or town way, who sustains damage in his property by reason of any raising, lowering or other act done for the purpose of repairing such way,” “ shall have compensation therefor.” Gen. Sts. e. 44, §§ 19, 20. The street, as widened, existed as a street when the grade was raised, and damages for its original location and widening had been paid, if demanded, to the landowners. These damages no doubt included compensation for changes in the surface of the street injurious to the owners, and which were contemplated as necessary in its original construction. But this did not prevent the town from changing the original grade at any time thereafter, for the purpose of improving or repairing the way. The question for the jury, in case of such change, would be, how much additional damage for that act the landowner ought to receive; in other words, how much of the change from the original surface was due to original construction, and how much to subsequent improvement of the street, — a question not more difficult than many which are constantly submitted to them by the court.

Verdicts accepted.