
    First Parish in North Bridgewater vs. County of Plymouth.
    It is no ground for not accepting a verdict of a sheriff’s jury, assessing damages occasioned to a parish by taking for a highway part of their land, bounding on private property, that at the trial before the sheriff evidence was admitted of the cost of erecting a fence between the land taken and the residue of the parish lands, although the parish lands had before remained unfenced: Nor that the sheriff refused to rule that damages should be assessed for one half of the fence only, and directed the jury that they were to consider the question of damages for the whole fence on the line of the highway next the parish lands.
    This was a proceeding to assess the damages occasioned to the complainants, an incorporated parish, by taking for a highway a portion of their land, bounding on land of a private person, and on part of which horse-sheds had been erected by some of the parishioners, by license of the parish.
    At the trial before the sheriff’s jury, a witness was asked by the complainants, what would be the cost of erecting a fence between the land taken and the residue of the complainants’ land. To this question the respondents objected, on the ground that the parish lot, over which the road was located, had hitherto remained unfenced. But the objection was overruled by the sheriff.
    The respondents requested the sheriff to direct the jury that if the complainants could be allowed anything for cost of fence, it could only be for one half of such cost. But the sheriff ruled otherwise, and directed the jury that they were to consider the question of damages for the whole fence on the line of the new road next the parish lands.
    The respondents excepted to these rulings and directions, but the court of common pleas overruled their exceptions, and accepted the verdict of the jury in favor of the complainants. The respondents appealed.
    
      E. Ames and P. Simmons, for the respondents.
    
      H. E. Smith, for the complainants.
   Shaw, C. J.

This case can hardly be considered as presenting any question of law. The assessment of damages depends much on the circumstances of each case ; and this is probably the reason and policy of the law, in providing that the inquisition of damages shall be taken by the jury on the ground, before an executive officer to conduct them, and not in the usual course of judicial proceeding. The evidence, on which they are to act, is mainly to be derived from their own observation on view, and but few general rules of law can be applied. Whether, after the highway was laid out, it would be necessary or expedient for the society to inclose and secure their ground by a fence against the highway, was a fit question for the jury; and the fact that it was formerly open and unenclosed, when it bounded on a private proprietor, would be no conclusive reason why it might not become necessary to enclose it by a fence, when laid open to the highway. And if a fence should be necessary, although formerly they bounded on a private proprietor, who if his own land was enclosed and occupied, (which does not appear,) might have been held liable for half the cost of a partition fence, yet this would not be the case, when their land by the laying open of the highway should bound on that highway. The public would be under no obligation to pay any part of the cost of maintaining a fence between the road and the parish. We are not prepared to say that in all cases proprietors whose lands are taken may claim damages for the cost of fencing against the road. It depends on the circumstances of each case, and on the broader question, whether in such case the cost of a fence will be one of the necessary, natural or probable consequences, incident to the taking of land for a highway.

Judgment of the court of common pleas, accepting the ver diet of the sheriff’s jury, affirmed.  