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State not to
S. J. court.
up the same with good materials, with reference to a complete drainage thereof, so as to abate the present nuisance, and to preserve the health of the city, and in no wise to affect injuriously the lands of the Commonwealth or its grantees in the Back Bay, or the system of drainage therein.
SECTION 2. Any person entitled to any estate in any part may file bill of the land so taken may at any time within one year from in equity in the time when the same shall be taken, as well in his own behalf as in behalf of all other persons having estates in the land so taken, file a bill in equity in the supreme judicial court, in the county of Suffolk, setting forth the taking of the complainant's land, and the condition of the same in respect to its capacity for drainage, and whether the complainant claims any and what damages against the city of Boston, or the Boston Water Power Company, or any other corporation or person, by reason of any and what wrongful act or omission by their causing a diminution in the value of his land at the time of said taking, and praying an assessment of damages against such parties. And upon the filing of such a bill, the said court shall cause notice of the pendency of said bill to be given to the parties named therein as defendants, according to the course of courts of equity, and also public notice thereof to all persons in whose behalf such bills shall be filed, to appear and become parties thereto, if they shall think fit to do so. Said court shall prescribe how such public notice shall be given, and what length of time shall be allowed for appearing and becoming a party to such Parties fail- suit. Any party failing so to appear and become a party within ing to ap the time prescribed by the court shall be forever barred forever from recovering any damages on account of such taking. Description Each person so appearing and becoming a party shall file a of lands to written description of the land in which he claims an estate, together with a plan thereof, so as clearly to distinguish the
Court to give the usual notice.
pear, to be
to be stated,
same from all other lands, and shall also declare what estate he claims therein. If he claims that the value of said lands If of less value by act at the time of taking the same was lessened by any unlawful of city or act or omission of the city of Boston or the Boston Water Boston Power Company, or any other corporation or person, so that Power Comthe value of the land, in its condition when taken, would pany, facts not be a just compensation for all the estate and rights of etc. the party in and in reference to the same, such party shall also state what such injury is, and how and by whom the same had been or is caused, and what right or title of the párty is violated, and what amount of damages in gross is claimed by him, as compensation therefor, from each of the parties defendant.
sioners to be
SECTION 3. Upon the expiration of the time allowed for Commisappearance to the said bill, the said court shall appoint three commissioners, who shall receive such compensation as the by the court said court shall fix, to be paid by the city of Boston.
and paid by
SECTION 4. It shall be the duty of the said commis- Commissioners, after due notice, to hear each of the said parties, hear the including the said city of Boston, and the said Boston Water parties and Power Company, and other parties named as defendants, and damages. to assess the present value of each parcel of the said land claimed by any party so appearing, with its capacity for drainage in its present condition; and the amount in gross, if any, of damages done to such parcel of land by reason of any unlawful act or omission of the city of Boston, or the Water Power Company, or any other party defendant, affecting its value at the time of said taking.
SECTION 5. Said commissioners, or the major part of Commisthem, shall make report to the said court of their doings, report to and when requested by any party, of the evidence touching the court, any exception intended to be taken by him.
If report excepted to, trial to be
SECTION 6. Any party aggrieved may either except to the report of the said commissioners, and have the exception heard and determined by the said court, according to its course as a court of equity, or may apply to said court to have proper issues framed and tried by a jury, and proceeded in as in other cases of issues ordered by said court. And on the trial of any such issue, the report of the commisReport to be sioners respecting its subject-matter shall be prima facie prima facie evidence of what is therein stated.
SECTION 7. When it shall be finally determined what damages to amount of damages any party is entitled to recover against be entered the city of Boston, or the Boston Water Power Company, or ferent any other party defendant, a separate decree shall be entered defendants. accordingly, and execution therefor shall be issued, without regard to the pendency of the claims of any other party or parties, or of other claims of such complainant.
trial by jury.
to be ex•
SECTION 8. If any party shall elect a jury, he shall recover his legal costs, if the award of the commissioners shall be altered in his favor; otherwise, he shall be liable for the legal costs of the other party or parties.
SECTION 9. Nothing in this act shall be construed as empted from exempting the city of Boston from any obligation it would liability to otherwise be under, to make compensation to the owners of
lands abutting on or near to the territory described in the first section of this act, for any injury it may do to such lands in any acts of raising, filling or draining said territory or any part thereof.
SECTION 10. If any party shall allege that the value of from the his land, at the time of the said taking, had been diminished
gations to be by any act or omission of the Commonwealth or its agents arate article or officers, for which diminution the Commonwealth ought
made in sep
port to be
to make him compensation, he shall make the allegations relating thereto in a separate article of the bill, in the nature of a petition of right against the Commonwealth; and the court shall cause notice thereof to be served upon the attorney-general. And the attorney-general shall Attorneyappear, and may make a separate answer thereto; and general to be the commissioners appointed by the court to assess dam- make sepaages under this act are hereby empowered to make a separate report of the damages, if any, caused to any party, by any act or omission for which the Commonwealth is Separate reresponsible, and shall, at the request of the attorney-general, made. report the evidence, together with the grounds of their opinion why the Commonwealth ought to pay the same. s. J. C. to And it shall be the duty of the supreme judicial court to commissioninstruct the said commissioners on any matter of law in- ers in matvolved in their decision, at the request of any party or of the commissioners, and the proceedings shall be conformed as nearly as possible to those in suits in equity. And the final report of the commissioners on the subject of the Report to be claims upon the Commonwealth shall be filed in court in and sent to the cause, and a duplicate thereof transmitted to his excel- governor. lency the governor. And if, in the opinion of the court, it Costs. is reasonable that the Commonwealth bear any part of the costs or expenses, the same shall be certified with the said report.
ters of law.
filed in court
and may re
SECTION 11. Said court may make all orders and decrees Court to necessary to carry into full effect the intent of this act, and may, at its discretion, at any stage of the proceedings, order quire secua party to give security for the payment of damages or costs, etc.
SECTION 12. All legal costs which shall accrue in pro- Costs to be ceedings under this act, not otherwise provided for, shall be paid as the said court shall order.
may be laid
Lands to be
SECTION 13. The city of Boston is hereby authorized to lay railway tracks through any street or streets of said city, and to maintain them so long as it may be necessary, to enable them to transport earth and other material to fill up the district aforesaid, under the provisions of this act.
SECTION 14. All lands taken under this act, otherwise taken within than by purchase, shall be taken within three years from the passage thereof.
SECTION 15. This act shall take effect upon its passage.
Approved June 4, 1868.