
    Charles M. Monagle vs. The County Commissioners of Bristol.
    An application to county commissioners for a jury to assess damages, occasioned by the laying out of a turnpike as a common highway, pursuant to the Her. Sts. c. 24, §11, and c. 39, §§ 16, 17, 18, must be made within the time limited by the Rev. Sts. c. 24, § 14.
    When county commissioners, on laying out a highway, pursuant to the Rev. Sts. c. 24, §11, or ordering specific repairs therein, pursuant to St. 1842, c. 86, §§ 2, 3, make no return of damages sustained by a party who has applied to them to estimate his damages, this is equivalent to a return that he has sustained no damage; and the party, if aggrieved, must apply for a jury within the same time as if the commissioners had expressly returned that he had sustained no damage.
    This was a petition for a mandamus. The petitioner set forth that in 1846 the county commissioners of the county of Bristol laid out a section of the Taunton and Providence turnpike as a common highway, which was duly accepted and recorded by the commissioners at their meeting in September 1846. The petition then set forth various orders of the commissioners afterwards made, as appearing on their records, ordering the town of Taunton to make and repair said road, appointing an agent, in default of the town, to make and complete the same, allowing the account of the agent, and ordering a warrant to issue against the town for the sum paid to the agent, which last order was passed on the 5th of April, 1848; and that this warrant was returned duly satisfied.
    The petitioner then averred that he was seized of a certain tract of land adjoining said highway; “that he was injured in his said property by means of the malting and completion of the said highway; that before and at the time of the completion of the said highway, the petitioner notified the said commissioners of his claim for damages in consequence of the injury so sustained by him, and that at the same time he notified the selectmen of Taunton of Iris said claim: That the said selectmen came to no determination till March, 1849, when they determined to award the petitioner no damages for his injury as aforesaid; but whether the said commissioners have found any determination or estimate of his said damages their records do not show, and the petitioner is not informed: ” That at a meeting of the commissioners, held on the 15th of August, 1849, he filed his petition praying for a jury to assess his damages, which petition was dismissed on the 25th of September, 1849; and on the same day the petitioner filed his petition, praying the commissioners to complete and make known to him their estimate of his said damages, which petition was also dismissed.
    The prayer of the petition was that this court would issue a writ of mandamus, commanding the commissioners to complete and make known their estimate of the petitioner’s damages as aforesaid, and to issue their warrant for a jury to assess the same.
    This case was argued and decided at the last October term.
    
      N. Morton, for the petitioner.
    
      H. G. O. Colby and C. I. Meed, for the respondents.
   Shaw, C. J.

It is a little difficult to ascertain from this petition, whether the petitioner seeks damages for injury to his property, occasioned by the laying out of the turnpike as a highway, pursuant to Rev. Sts. c. 24, § 11; c. 39, §§ 16,17, 18; or for damages occasioned by specific repairs, affecting the grading and level of the road, pursuant to St. 1842, c. 86, §§ 2, 3. But whether the one or the other, the application comes too late.

If any damage could be claimed by the petitioner, as an adjacent proprietor, which by Rev. Sts. c. 39, § 17, must be very small, if any, application for a jury, by Rev. Sts. c. 24, § 14, must be made at the same meeting, or at the next succeeding meeting, or within a further time, not exceeding six months. But it is argued, that this provision applies only when the commissioners have estimated some damages,.which the party aggrieved may think too small. The provision, § 11, is, that if damage shall be sustained by any persons in their property, the commissioners shall estimate and return the same. Now, if no damage is returned, the conclusion is, that in the judgment of the commissioners none has been sustained; it is a judgment against his claim for any damages, and if the party is aggrieved by such judgment, it is a case within the statute, and he must petition for a jury within the time limited; otherwise, he acquiesces in such judgment.

If this is a claim for damages occasioned by specific repairs, as by raising or lowering the grade of the road to the injury of the petitioner, it depends on St. 1842, c. 86, §§ 2, 3, providing that whenever the commissioners shall order specific repairs, which shall occasion damage, the commissioners shall estimate the same and make return thereof, as damages are required to be estimated, on laying out a highway. There the same rule applies; if the commissioners return no damage for an individual, it is equivalent to their judgment, that he has sustained none, and then the party aggrieved may, by § 3, have a jury, provided the application be made within six months after the commissioners shall have made their order.

Now, without deciding which of the orders of the commissioners occasioned the damage stated by the petitioner, and taking the date of the last, by which they allowed the bill of the agent, after the alterations were completed, as most favorable to him, it was almost a year and a half, from April, 1848, to August, 1849, before his application was made to the commissioners. The averment that he applied to the selectmen of Taunton, seems to be wholly inapplicable.

The court are of opinion that the application, in either view, was too late, and the decision of the county commissioners rejecting it, right. Petition dismissed.  