Barker v. City of Taunton , 119 Mass. 392 ( 1876 )

Colt, J.

The petitioner claims damages for the act of the city in reducing the grade of two streets. At the trial' before the sheriff’s jury, he put in evidence an order passed in July, 1871, establishing the grade of Winthrop Street, followed by an order in September, 1873, for the construction of a sidewalk in that street; and also by an order in May, 1874, for the construction of sidewalks on High Street.

It was in evidence, that, under the order of 1871, work on Winthrop Street was carried on through the year and into the summer and fall of 1872, when the street in front of the petitioner’s premises was cut down to the established grade, but the sidewalks were only partially brought to grade. In the summer and fall of 1873, the sidewalks were finally reduced to the established grade of that street. The petitioner is required to file his petition fox damages within one year from “ the completion of the work.” Gen. Sts. o. 44, § 19. This petition was filed July 1, 1874, and the respondent asked that the jury be instructed that the petitioner could not recover for change of grade under the first order, if the petition was not presented within one year from the completion of the work under that order; but the jury were told that the petitioner, having presented his petition within one year from the time when the sidewalk in front of his premises was brought to its final grade, could recover for all damage done by change of grade.

In view of the real issues presented by the evidence, we cannot see that this instruction is fairly open to the objection that it takes from the jury a question of fact which should have been submitted to them, namely, the question when the work was completed. There was no contradictory evidence as to the time when the work was done. The real question was, whether the year began to run from the completion of the grade of the street proper, that is, the part devoted to carriage travel, or from the completion of the grade of that part devoted to foot travel. There was no dispute but that the petition was presented within a year from the latter time. It would have been erroneous to have ruled that it must be presented within a year from the time when the grade of the damage way was completed. There is nothing to show that the order of 1871 is limited to the latter, and it is broad enough in terms to cover the whole street. The sidewalks are a part of the street; and it appears that in fact the change of grade in the sidewalk was commenced and partly completed before the order of 1873, for the construction of a sidewalk, was passed. There is nothing in the terms of the last-order inconsistent with the order of 1871, or which shows that it was intended to supersede or repeal that order. The first relates only to the grade of the whole street; the last, to the construction of sidewalks with concrete pavement and edge-stones. There is nothing which determines that the work of grading was done under the last order after September, 1873. Under both, the work was done by the superintendent of streets; and it would be unjust to the petitioner now to hold that the grading, so far as it was done after the last order, should be referred only to that, so as to defeat or diminish his claim for damages. The respondent was not wronged by the instruction given and the refusal to give the one asked.

The respondent objected that the petitioner should not be allowed to state how much he had expended in improvements upon the premises since the change of grade. And this objection would have been well taken if the cost of such improvements had been claimed as a substantive ground of damage. Buell v. County of Worcester, ante, 372. But here the testimony was competent in reply to the respondent’s evidence that the changes made, including the petitioner’s own improvements, had increased by a given sum the value of the premises. It was necessary for the jury to know how much of that sum was due to the petitioner’s own acts. Being competent for this purpose, it is right to infer that it was submitted to the jury with proper qualifications, or that the objecting party did not care to limit its effect. It must appear affirmatively that such evidence was permitted under objection to be improperly used. Earle v. Earle, 11 Allen, 1.

It is no bar to the claim for damages made by the petitioner, that he was one of the original petitioners for the improvements. That alone is not evidence of an assent that his property shall be taken for public use without compensation.

It was conceded at the argument that the objection that the city was not liable for the acts of the superintendent of streets was disposed of by the decision in Thurston v. Lynn, 116 Mass. 544. All other points were waived by the respondent at the argument. Verdict accepted.