The questions presented by this case are mora numerous than novel or difficult.
1. The betterment act of 1871, c. 882, § 1, does not repeal § 16 of the highway act, Gen. Sts. c. 43, but expressly recognizes it as still in force. Green v. Fall River, 113 Mass.
2. The proceedings of the selectmen are alleged in the petition to the county commissioners for a jury to have been for the alteration of a town way; the trial was by a sheriff’s jury, and the verdict was certified to and accepted by the Superior Court accordingly. Having been treated by that court as proceedings under the highway act, they cannot be considered by this court as proceedings under the betterment act. Allen v. Charlestown 109 Mass. 243. If the proceedings of the selectmen had been under the betterment act, the trial by jury must have been had at the bar of the Superior Court. St. 1871, c. 382, § 7.
3. The direction requested as to the benefits to be set off was rightly refused, because it excluded all benefits whatever that affected any other estate besides the petitioner’s. The direction given in answer to that request was in the very terms of the Gen. Sts. c. 43, § 16. It was explained by the first direction of the presiding officer, which excluded all benefits “ common to the petitioner and others owning land on or in the vicinity of said way,” and was quite favorable enough to the petitioner. Allen v. Charlestown, 109 Mass. 243. Upham v. Worcester, 113 Mass. Green v. Fall River, Ib.
4. The direction originally given — that if, prior to the laying out of the town way, the owners of the land had opened a way at the same place, and permitted the public to use it for twelve years, it did not become a public way until laid out and established by the town — was afterwards modified, at the request of the petitioner, by directing the jury that if it had been so opened for the use of the public, with the intention that it should be used as a public way, and it had been used by the public, with the assent of said owners, for twelve years, the jury might infer that it was dedicated to the public use, and the petitioner and other abutters would have a right to pass over it to and from their estates. If there was any error in the direction as thus modified, it was in being too favorable to the petitioner. St. 1846, c. 203, § 1. Gen. Sts. c. 43, § 82. Morse v. Stocker, 1 Allen, 150.
*2075. The burden of proof was on the petitioner to prove his right to the damages which he claimed. If he relied on a previous legal right of way to increase or prevent the diminution of those damages, the burden was upon him to prove it, and the jury were rightly so directed.
6. The direction that the jury should not regard only the use to which the petitioner’s land was applied by him, but “ must take into consideration the more advantageous use to which the property may be applied in consequence of opening the new street,” was correct. It did not, rightly construed, and taken in connection with the other directions upon the same point, declare that the use for a street would necessarily be more advantageous, but left it to the jury to consider whether this use, to which the property might be applied,would be more advantageous.
7. The direction that the jury should estimate the damages upon the basis of the continuance of the present grade, and not upon any speculative grade in the minds of the witnesses, was given in substance, and in nearly the same words in which it was requested. The jury, in assessing damages under the highway act, had nothing to do with the question what might thereafter be done under the betterment act; and the refusal, in proceedings under the one, to direct them as to what might be done under the other, afforded the petitioner no just ground of complaint. Upham v. Worcester, 113 Mass.
8. The witness who had been a selectman and assessor of the town was rightly permitted to testify to the difference in the market value of the petitioner’s estate before and after the laying out of the town way, supposing this way to be made. Shaw v. Charlestown, 2 Gray, 107. Dickenson v. Fitchburg, 13 Gray, 546. Swan v. Middlesex, 101 Mass. 173.
9. The other witness was rightly permitted to state the reasons of his opinion as to the increase in value of the petitioner’s estate. Dickenson v. Fitchburg, 13 Gray, 546. The nature of those reasons affected only the weight of his testimony.
Judgment accepting the verdict affirmed.