Rand v. City of Boston

• Citation: 41 N.E. 484,164 Mass. 354
• Parties: RAND et al. v. CITY OF BOSTON.
• Decision Date: 16 October 1895
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 354

41 N.E. 484

RAND et al. v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

October 16, 1895

COUNSEL

R.M Morse, F. Burke, and J. Duff, for petitioners.

T.M Babson, for defendant.

OPINION

HOLMES J.

The only question argued in this case is whether damages can be recovered under St.1890, c. 428, and St.1891, c. 123, for diminishing the market value of the plaintiffs' land, obstructing its light and air, and occasioning dust to be blown upon it, by building an embankment and bridge upon land taken from a third person, on the opposite side of the street from the plaintiffs' land.

It will be observed that, if any other owner of the land had done the acts complained of, he would have had a perfect right to do them, and would not have been liable for any of the harm suffered by plaintiffs in consequence. The same thing would be true as to the city, if it had owned the land before, and had not taken it under the powers conferred by the statute. If the city has greater liabilities in respect of land taken under the statute, they must be imposed by statute. Whether they are imposed, or not, is a question of the construction of the particular words used, not of general principles.

So far as there is any general tendency or principle of construction to be gathered from the decisions, while damages which the common law would not allow have been held in some cases to be given by general words which probably would have been construed more narrowly in England ( Woodbury v. Inhabitants of Beverly, 153 Mass. 245, 26 N.E. 851; see Stanwood v. City of Malden, 157 Mass. 17, 32 N.E. 702), still, here as well as in England, the tendency is well settled to deny damages like the present unless some land of the plaintiff is taken. Presbrey v. Railroad, 103 Mass. 1; Walker v. Railroad, Id. 10, 14; Fay v. Aqueduct Co., 111 Mass. 27, 28; Johnson v. Boston, 130 Mass. 452, 454; Sawyer v. Davis, 136 Mass. 239, 242; Wellington v. Railroad, 158 Mass. 185, 189, 33 N.E. 393; Taft v. Com., 158 Mass. 526, 548, 549, 33 N.E. 1046; Titus v. City of Boston, 161 Mass. 209, 210, 36 N.E. 793; In re Stockport, T. & A. Ry. Co., 33 Law J.Q.B. 251; Essex v. Board, 14 App.Cas. 153. See, also, Benton v. Inhabitants of Brookline, 151 Mass. 250, 260, 23 N.E. 846. It is true that when land is taken such damages sometimes can be recovered, to a certain extent. The grounds for the exception are discussed in Lincoln v. Com. (decided this day) 41 N.E. 489. But the difficulty, if there is one, is to justify the exception, in the form which it has taken, rather than the rule; and it seems to us putting the cart before the horse to start from the exception, and to argue that if such damages are allowed to any extent, under any circumstances, they ought to be allowed to their full extent, and always.

The language of the statute before us, so far as material, is, "All damages sustained by any person in his property by the taking of land for, or by the alteration of the grade of, a public way *** shall primarily be paid by the city or town." St.1890, c. 428, § 5; St.1891, c. 123, § 1. These are the words which fix the damages to be paid. The later provision for a trial in the superior court "in the same manner and under like rules of law as damages may be determined when occasioned by the taking of land for the locating and laying out of railroads and public ways, respectively, in such city or town," refers to the mode of ascertaining the damage already given, and does not enlarge the express statement of what is to be paid for. It is not argued that there has been an alteration of grade, within the meaning of the act; so that the plaintiffs' case stands on the words, "All damages sustained by the taking of land for a public way." In Bacon v. City of Boston, 154 Mass. 100, 104, 28 N.E. 9, the words, "Said city shall make compensation to the owners for such lands as it shall take," in St.1881, c. 303, § 3, were held not to give damages to any one whose land was not taken. In that statute, an in this, there was a reference to the proceedings upon the taking of land for highways. A majority of the court are of opinion that the statute before us has no broader meaning. Cases like Trowbridge v. Brookline, 144 Mass. 139, 10 N.E. 796, under statutes providing expressly, as in Pub.St. c. 49, § 16, that "regard shall be had to all the damages done to the party, whether by taking his property or injuring it in any manner," do not apply. We repeat that the question is simply one of construction. The operative words here are narrower than those just quoted from the Public Statutes, as to ways and sewers, or even those as to railroads ("all damages occasioned by laying out, making, and maintaining its road." Pub.St. c. 112, § 95), although, as will have been noticed, the two leading cases which we have cited from 103 Mass. arose under the railroad acts. How the line is to be drawn between those and other decisions under similar statutes, we have no occasion to consider further at this time.

Judgment on the verdict.

DISSENTING

KNOWLTON J. (dissenting).

I regret that in this case I am unable to agree with the majority of the court. The dwelling houses and building lots of the petitioners have been very greatly diminished in value by the taking of a strip of land along the line of the street on the opposite side, and the location upon it of a way which crosses over the railroad on a bridge. The petitioners' property, which was situated at a convenient grade upon a pleasant street, is now left far below the line of travel, and its light and air and outlook are cut off by a high embankment in front of it. According to the recitals in the petition, these damages are assessed at $10,000 by the street commissioners of Boston. The change was made under St.1890, c. 428, and St.1891, c. 123, which provide for the abolition of grade crossings. Such changes are being made, and are likely to be made, in great numbers, throughout the commonwealth. By the terms of the statute the damages are to be paid in part by the city or town, in part by the railroad company, and in part by the commonwealth. "All damages sustained by any person in his property by the taking of land for or by the alteration of the grade of a public way" are to be determined "in the same manner, and under like rules of law, as damages may be determined when occasioned by the taking of land for the locating and laying out of railroads and public ways, respectively, in such city or town." St.1891, c. 123, § 1. The language of the statute seems to me plainly to show that the principles on which the assessment is to be made are not less favorable to persons claiming damage than those applicable to assessment when land is taken for the laying out of any other public street or way. The language defining the damage, as well as the language in regard to the mode of assessing it, is substantially the same as in the Public Statutes. The case of Bacon v. City of Boston, 154 Mass. 100, 28 N.E. 9, was decided under a statute which requires the city only to "make compensation to owners for such lands as it shall take under this act."

In my view of the case, the question is whether one who has suffered substantial damages in his property by the taking of land for a public way is entitled to damages if no part of his land is taken. Pub.St. c. 49, § 16, provides that "In estimating the damage sustained by laying out *** the highway *** regard shall be had to all the damages done to a party whether by taking his property or injuring it in any manner." The provision in regard to damages for laying out, making, and maintaining a railroad, although in different language, is in substance the same. Id. c 112, § 95. The statute giving damages for a change of grade or other work done in making repairs upon a way differs from these in limiting the compensation to owners of land adjoining the way. Id. c. 52, § 15. The right taken under these statutes is only an easement, but the nature of the easement is such that the damage is usually the same as if the fee were taken. There were different ways in which the legislature might have dealt with this subject. They might have said that the constitution requires compensation only for the land itself which is taken, and no provision shall be made for damages occasioned by the use to which it is appropriated, however great they may be. In this view, even if such a use would constitute a nuisance if made by a private owner, it could not be a ground of compensation, and damages to a person whose land is taken could never exceed the value of the land, and no damages could ever be allowed to any one from whom no land was taken. This would be an extreme view, which, so far as I know, has never been adopted by any court or legislature. Another view, less extreme, would allow damages only when the use, as affecting the adjacent land, would constitute a nuisance at common law if it were not authorized by the statute, but, when there was injury to that extent, would allow any person, whether any part of his land was taken or not, such damages as, if caused by a private owner, would be the subject of an action at the common law. A more liberal provision would give compensation to every person suffering special and peculiar damages in his property from the use to which the land is appropriated, whether any part of his own land is taken or not, and without reference to the question whether the land might have been used in a similar way by an individual owner. Such a provision is not inequitable, for, even if no greater damage is done than might have been done by the owner of the fee without liability, there is usually little probability that an individual proprietor would ever put his...