Neal v. Knox & Lincoln Railroad ( 1873 )

ViRGiN, J.

I do not see how the verdict can be sustained.

The original petition is by an administrator of Barker Neal’s estate, for damages to “ his land,” i. e. petitioner’s land.

Being aggrieved, as he says, by the commissioners’ “ estimation of damages for his real estate taken,” etc., “ he petitions for increase.” This latter petition contains no hint that he is or acts otherwise than as an individual.

The verdict refers to the “petition of the administrator, etc., for increase of damages,” etc., and “ awards damages to the petitioner for land so taken.”

If the land- was taken during the lifetime of Barker Neal, his administrator would be entitled to damages; but the heirs could not petition for increase, for they would have no interest, having been divested by the taking. They might have an interest subject to respondents’ rights. If taken after Barker Neal’s decease, it was the heirs’ land, and the administrator had nothing to do with it or the damages. Moore v. City of Boston, 8 Cush, bottom of p. 277 and top of p. 278. Motion sustained.

Verdict set aside.

AppletoN, C. J.; CuttiNG, DiokeesoN, DaNpoeth, and Pe-tees, JJ., concurred.