First Church in Boston v. City of Boston

Metcalf, J.*

There can be no doubt that, in estimating the damage to a landowner, caused by the laying out of a public street over his land, neither the city authorities nor a jury are confined to the value of the land covered by the street. He is also entitled to the amount of the damage done to his remaining land by the laying out of the street. Commonwealth v. Coombs, 2 Mass. 492. Commonwealth v. Norfolk Sessions, 5 Mass. 437. This is not denied by the respondents; but they object that the damage done to the petitioners’ remaining land cannot be recovered on this petition, which describes, by metes and bounds, the land taken for the street, and asks only for a jury to assess a compensation for the taking of said land.’' There would have been plausibility in this objection if the petition had prayed only for compensation “ for the land so taken.’' But we are of opinion that the prayer for compensation “for the taking of said land ” sufficiently prays for compensation for all the damage done to the petitioners by the taking of Chauncy Place and laying out a public street over it, including the damage thereby sustained by them in their adjoining property. The deed of R. & A. Hollinghead was therefore rightly received in evidence for the purpose of proving the petitioners’ ownership *216both of Chauncy Place and of the land adjoining; and the jury were thereupon rightly instructed.

If, in any case like this, a city or town be surprised at the trial by an unexpected claim for damages, a postponement will always be granted by the court to enable the respondents to meet such claim, as in other cases, when fairness and justice require such postponement. Exceptions overruled.

This case was argued by consent before Shaw. C. J., and Metcalf and Merrick, JJ.