Inhabitants of Winchester v. County Commissioners

It is contended that the doings of the county commissioners ought to be set aside, because in proceedings for the assessment of damages for land taken for a highway, they allowed a petition for a jury, which had been seasonably filed, to be amended, and permitted the life tenant to become a party to it, after the expiration of the year allowed for such petition. This, it is said, overrides the statute of limitations, and gives a person standing in court who had lost it by lapse of time.

But a petition of this character is in the nature of a civil action. The commissioners exercise judicial power over it, and come within the provisions which allow amendments in form or substance of any process, pleading or proceeding. It was so held in Grand Junction Railroad Co. v. County Commissioners, 14 Gray *483553, 564, and there is nothing in the lapse of time, or in the fact that a warrant for a jury had been issued and been returned with a disagreement, which diminishes the power of amendment. Under the petition originally filed, the subject matter was fully before them. By Gen. Sts. c. 43, § 17, when an estate for life is in one person, and the remainder or reversion in another, entire damages are to be assessed without any apportionment, to be held in trust for the parties in interest. The petitioner had the right to entire damages under the original petition. This right cannot be lost or impaired by the fact that the life tenant did not originally join. It is unnecessary to consider the rights, if any, which the life tenant might have had under the award of the commissioners, which was made to him apparently under a misapprehension of title, if he had insisted on that award. By joining in this petition he must be held to have waived any claim to damages separately awarded to him. It is evident that the town of Winchester was in no way prejudiced by the allowance of the amendment. It may have been for its benefit. Davenport v. Holland, 2 Cush. 1, 14. Gleason v. Sloper, 24 Pick. 181. New Marlborough v. County Commissioners, 9 Met. 423, 432.

Petition dismissed with costs.