Pinkham v. Inhabitants of Chelmsford , 109 Mass. 225 ( 1872 )

Ames, J.

The rights of this petitioner depend upon the proper construction of the Gen. Sts. c. 38, § 39. His appeal is not from the vote of the town designating a portion of his land as a suitable place for a school-house, but from the decision of the selectmen under that vote, in the selection of the particular spot upon his land, and in their award of damages. His petition for a jury, without protest or notice of objection to the proceedings of the town, is a waiver of all objection to any irregularities in such proceedings, if any such irregularities occurred. Flagg v. Worcester, 8 Cush. 69. Fitchburg Railroad Co. v. Boston & Maine Railroad, 3 Cush. 58. He cannot claim damages for the taking of his land, and at the same time deny that the land is taken. All that the jury can do upon this appeal is to change the proposed location of the building, and to revise the award of damages. The statute gives them no authority to take the land of any other person not a party to the proceedings, nor does it give them a veto on the proceedings of the town by an order that no part of the petitioner’s land shall be appropriated according t> • such vote. It is plain therefore that their power to change tin location of the building can only be exercised within the limits o) the petitioner’s land, and was only intended to secure to the petitioner such reasonable regard to his convenience and interest in the use of the remaining land, not appropriated to the public use, as should not be inconsistent with the public convenience. Wilson v. Beverly, 103 Mass. 136. Merrill v. Berkshire, 11 Pick. 269, 275. Gloucester v. County Commissioners, 3 Met. 375, 377. Hobart v. County of Plymouth, 100 Mass. 159.

The testimony as to value was in our opinion competent and admissible under the rule laid down in Swan v. County of Middlesex, 101 Mass. 173, and the cases there cited. The question for the jury was, what was a proper price, or in other words, what was the value of the land taken, — a question which did not depend upon the use the owner was intending to make of it, or the plans which he had formed in relation to it. Boston & Maine Railroad v. County of Middlesex, 1 Allen, 324. First Parish in Woburn v. County of Middlesex, 7 Gray, 106.

For these reasons the rulings of the sheriff appear to have been correct, and in the first case we therefore direct that the

Verdict be accepted.

In the second of these cases, the demandant denies, and puts in issue, the lawfulness and validity of the proceedings of the town. That is to say, he denies that his land has been taken and appropriated by the town. He insists that it continues to belong to him exactly as if no such proceedings had ever taken place; and that the attempt of the town to place a school-house upon the land is a mere disseisin or trespass. As the writ of certiorari will not lie in such a case, the question which the demandant wishes to raise may be considered in a real action or in an action of tort. But, as has already been intimated, it appears to us that the act of appealing to a jury to revise the doings of the selectmen in the selection of the lot, and in the award of damages, is a waiver of all objections to the preliminary proceedings of the town, on the ground of any supposed irregularity. It is true that the demandant insists that no such waiver was intended on his part, and professes himself ready to abandon all his proceedings before the sheriff’s jury, if the court shall be of opinion that he is entitled to prevail in the present action. But we think he can derive no advantage from any such conditional abandonment. The law gives him no right to resort to two conflicting and incompatible modes of seeking redress, with the intention of placing his final reliance upon that one of the two which shall ultimately be sanctioned by the court. He must elect one or the other of the two remedies, but he cannot rely npon both at the same time. It is a sufficient answer to all his objections to the proceedings of the town as void and of no effect, that he is at this moment in court, claiming damages of the ‘ town for land taken by virtue of these very proceedings, and that the verdict of the jury in his favor has been sustained by the court. If the action of the town had no legal effect, he has sustained no damage. His offer to abandon the proceedings before the sheriff’s jury, if the court should hold him entitled to maintain this action, will not justify him in changing his ground and claiming that the land never was taken. He must either insist upon his objection to the doings of the town, or waive it unconditionally and without waiting for a decision of the court as to the weight of that objection. What would have been the effect of an unconditional and actual discontinuance of Ms petition for damages is a question' wMch we are not called upon to consider.

Judgment for the tenants.