Mowry v. City of Boston

• Decision Date: 19 May 1899
• Parties: MOWRY et al. v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 425

53 N.E. 885

MOWRY et al. v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1899

COUNSEL

O.R. Mowry J.E. Cotter, and Asa P. French, for petitioners.

Thomas M. Babson, for respondent.

OPINION

KNOWLTON J.

The only question in this case is whether the damages for the taking of the petitioners' land are to be assessed at the value of it at the time of the passage of the act which required the taking as a part of a scheme of improvement which included the construction of the Union Station for passengers on railroads entering the southerly part of the city of Boston, or at its market value when it was formally taken, nearly a year afterwards, when the price of land in the vicinity had increased by reason of the expected improvement, of which the taking of this land was a part. The answer to the question is found in the fact that the taking was an inseparable part of the improvement out of which the expected increase in value was to come, and on account of which there was a general increase in the market price of real estate in the vicinity. Section 11 of the statute referred to (St.1896, c. 516) directed the street commissioners to extend Summer street "at least one hundred feet in width from Purchase street to the harbor commissioners' line." The contemplated improvement which increased the market price of land, could not be carried out, under the statute, without this extension for which the petitioners' land was taken. By Pub.St. c. 51 § 3, "the damages for land taken shall be fixed at the value thereof before the taking." This section has been decided to be constitutional, and its meaning as applied to cases where the market price of land is increased before the actual taking by reason of an expected improvement which involves the taking, has been considered in several cases. Dorgan v. City of Boston, 12 Allen, 223; Benton v. Inhabitants of Brookline, 151 Mass. 250, 23 N.E. 846; May v. City of Boston, 158 Mass. 21, 32 N.E. 902; Bowditch v. City of Boston, 164 Mass. 107, 41 N.E. 132; Teele v. City of Boston, 165 Mass. 88, 42 N.E. 506. The doctrine of these cases is stated by the counsel for the present petitioners, in their brief, in these words: "The owner of land taken for public use cannot recover therefor an enhanced value which it has acquired merely by reason of the taking, or as the result of the improvement which the taking of that particular...