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• Title: Joly v. City Salem
• Author : Supreme Judicial Court of Massachusetts
• Release Date : January 15, 1931
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 61 KB

Description

PIERCE, J. This is a petition to assess damages for the taking, by the city of Salem, of certain filled flats and other flats in Palmer Cove, Salem, the property of the petitioner, under St. 1928, c. 364. This act was accepted by the respondent on June 14, 1928, and the petitioner's land was duly taken on August 9, 1928. The respondent, thereupon, secured a license from the department of public works and a permit from the war department to fill these flats. On this petition no question is or properly could be raised as to the validity of the taking. The jury assessed damages and the respondent brings the case before this court on exceptions which pertain to damages only. The petitioner's property which was taken by the respondent consists of fourteen thousand seven hundred square feet of filled flats, and two pieces of unfilled flats. The petitioner had owned the flats taken for at least twenty years and had lived for twenty years near that part of Salem Harbor known as Palmer Cove. It is conceded by the petitioner that he never had a license from the department of public works of the Commonwealth of Massachusetts or a permit from the war department of the United States to fill any part of the fourteen thousand seven hundred square feet of flats, and on the evidence shown in the record the jury would have been warranted in inferring, and therefrom finding, that neither the respondent nor anyone had ever had such a license and permit. Respecting certain fillings by the respondent, it appears in the bill of exceptions that it had, previous to the taking of the petitioner's land, filled certain flats of its own in Palmer Cove, but that all 'filling directed by the City had been under licenses and permits.' The fourteen thousand seven hundred square feet of filled land were formerly tide water flats in that part of Salem Harbor known as Palmer Cove. Filling had been dumped on the flats taken over since the petitioner bought the land, and on the fourteen thousand seven hundred square feet of land 'since the Salem Fire in 1914 by the public.' The petitioner testified 'the City of Salem and most everybody that wanted to dump there.' He further testified that he 'knew * * * [the filling] had been going on'; that he had not forbidden dumping thereon; that his consent or permission had never been asked; that he 'saw them dumping there'; that he did not care 'whether they were on * * * land or * * * neighbor's'; that 'they were filling just the same as any other contractor'; that he wanted the filling; that he had no objection to it at all. On the above testimony the jury would have been warranted in finding that the petitioner knew of the filling and that ever since he bought the land he had been willing to let it be filled in.

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