BETTY JEAN SMITH vs. BILLY H. SMITH & another (and a companion case ).

JAMES R. MCMAHON, JR., & others, trustees, vs. JAMES F. KRUMRINE & another, trustees, & another.

361 Mass. 855

February 9, 1972

This suit seeking damages for certain acts of trespass on the plaintiffs' land has been

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here before, McMahon v. Krumrine, 353 Mass. 511 , and was returned to the Superior Court for application of the proper measure of damages. The matter is here again on a substitute bill of exceptions which indicates that the trial judge in assessing damages did so in accordance with our opinion. However, the defendants allege various exceptions with which we deal briefly, for we find no error in the rulings of the judge. In moving for the designation of a stenographer to report the evidence, the defendants waited nearly five months after the trial was over and nearly three months after the entry of the final decree in this matter. This was an inordinate delay. Maraghey v. Tarpey, 334 Mass. 157 , 159, and cases cited. The judge properly denied the motion. Nor does error appear in the court's refusal to allow an amendment to the defendants' answer after our rescript or in denying a motion seeking consolidation with another case made subsequent to our prior decision in McMahon v. Krumrine, supra. Three other exceptions deal with the defendants' objections to testimony by a plaintiff bearing on the value of the affected property. Much must be left to the discretion of the trial judge in this area. We perceive no abuse. Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authy. 335 Mass. 189 , 198-199. Brush Hill Dev. Inc. v. Commonwealth, 338 Mass. 359 , 361-362. Aselbekian v. Massachusetts Turnpike Authy. 341 Mass. 398 , 401. Other exceptions are concerned with evidence palpably excludable or are otherwise without merit. We might add that the excursions of the defendants' brief into matters outside the record have not served to help the court.

Exceptions overruled.