This is a petition brought under the Pub. Sts. c. 49, §§ 79, 105, to recover damages for the taking of land for the laying out of a town way. Previously to the taking, the land taken abutted upon the public street, with a fence on the line of the street and a concrete sidewalk adjacent to the fence. The portion taken was about eighty-four square feet in all, and was near the corner of the lot, which was rounded off in the taking so that the fence, when it was set back, had in it six angles or more along the line of the new street.
The petitioner and one of her witnesses were permitted to testify, against the objection and exception of the respondent, to the condition of the sidewalk immediately in front of the premises before the land was taken, and to its condition afterwards. The presiding judge admitted the testimony to describe the premises at the time of the taking and after the taking, and told the jury that the evidence was to be confined to that purpose.
It hardly can be contended that a jury, in order intelligently to understand a case of this kind, may not ascertain, as a matter of description, the condition of the premises and their surroundings immediately before and immediately after the taking.
The respondent fears that the jury may have given undue effect to the testimony in determining the damages. The possibility of this might have been guarded against by requesting instructions, but no instructions were asked for.
We do not intend to intimate that the condition of the sidewalk and its relation to the fence as it was set back, might not have been a legitimate subject for particular consideration in estimating damages, if, in Revere, as in many other places, the cost of the laying and reconstruction of sidewalks is assessed either wholly or in part upon the abutters. It seems not improbable that a new sidewalk may be deemed necessary at an early day in consequence of the change, and that the petitioner’s property may be subject to an assessment for the cost of it; but the case calls for no opinion on this subject.
Exceptions overruled