Baker v. Boston Elevated Ry. Co.
| Decision Date | 01 April 1903 |
| Citation | 66 N.E. 711,183 Mass. 178 |
| Parties | BAKER et al. v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frank N. Nay, Wilfred Bolster, and Leon M. Abbott, for petitioner baker.
H. E Bolles, Chas. H. Tyler, Owen D. Young, and O. O. Partridge for petitioners Wells and others.
Hayes & Williams, for petitioner F. Peabody, Jr., H. M. Knowlton and Geo. C. Travis, for respondent.
This is a petition, under St. 1894, p. 764, c. 548, to recover damages to the petitioners' property caused by the location, construction, maintenance, and operation of an elevated railway through Harrison avenue--a street in Boston--in front of the petitioners' premises. The questions in the case relate to noise as an element of damage in such cases. The chief justice of the superior court, who heard the case without a jury, 'found that the noise occasioned by the operation of the respondent's elevated railway was such, in general character and extent, as, but for the statutory authority, would constitute a private nuisance, of a grave character, to the petitioners' estate,' and decided that the petitioners were entitled to recover the sum of $2,000, in all, as damages, one-half of which is for the damage from noise. The petitioner Baker owned the fee of the land to the center of the street, subject to the rights of the public, but there were restrictions in his deed which limited his occupation and use of a strip 10 feet in width along the line of the street. The width of the street in front of the estate, including the sidewalks, is 50 feet, and the width between the curbstones is about 31 feet. The respondent's structure, the width of which is 20 feet, is substantially in the middle of the street, and the west track, which is 5 feet in width from rail to rail, is wholly in that part of the street the fee of which is owned by the petitioner. The land is occupied by a brick building, 4 stories in height, used as a tenement or lodging house. At the conclusion of the evidence the respondent asked the court to rule as follows: The court declined to give these rulings, and, afte rfinding the facts and assessing the damages, reported the case to this court, at the request of the parties, under a stipulation that such judgment shall be entered upon the facts found as the law requires. The judge also found that, if damage for noise were to be assessed under the rules stated in the respondent's requests, the amount to be awarded would be only $100.
It would seem as if the trial proceeded upon an assumption by both parties that the petitioner was entitled to recover for noise, and that the only question was how much. But under the terms of the report the broader question, whether noise can be considered at all as an element of damage, has been much discussed in this court. We think it pretty plain, for reasons which we shall state hereafter, that the rulings requested were rightly refused, and we shall first consider the broader general question above referred to. The answer to this depends upon the meaning of the statute under which the petition is brought, material parts of which are as follows: 'The location, construction, maintenance and operation of said lines of railway in any public or private way, shall be deemed an additional servitude, and entitle lessees, mortgagees, and other parties having an estate in such way, or in premises which abut thereon, and who are damaged by reason of the location, construction, maintenance and operation of said lines of railway, to recover reasonable compensation in the manner herein provided.' St. 1894, p. 764, c. 578, § 8. St. 1894, p. 765, c. 548, § 9.
This statute deals with conditions materially different from those contemplated by any previous statute under which action has been taken in this commonwealth, and, of course, it must be interpreted in reference to these conditions. At the same time, it belongs to a department of legislation, which includes many previous enactments, and which concerns a large part of the fixed property in the commonwealth. In the absence of plain indications to the contrary, a legislative intention to make it harmonious with existing legislation of the same class may be presumed.
The statement of the questions on which the findings are to be made in a statute of this kind is a new departure in this commonwealth, and the broad statement of the benefit or improvement in value which is to be set off against the damage suggests the possibility of an intention that everything should be considered, causing an increase of value, on one side, or a diminution in value, on the other, and that a balance should be struck, showing the resulting effect upon the value of the property, and, if the diminution from all causes is greater than the increase, damages should be awarded accordingly. Such a rule would enable a landowner on the street to recover as damages possible elements of diminution in value which might be common to the property throughout a large neighborhood, from causes which might affect all persons in the neighborhood, whether permanently or temporarily there; and, on the other hand, it would compel the landowner to set off against his damages elements of enhancement of value which might be common to property owners throughout a large territory, or even to all in the city. It would be unjust to him that he should be compelled to set off such benefits against his claim for damages, when others, who have no claim for damages, receive them without charge; and it would be unjust to the eaxpayers, or to the private corporation which represents the public, if he should be allowed damages for diminution in value from causes affecting a large part of the public, who must endure these effects without compensation. For this reason the word 'damage,' in statutes of this kind, is held to include only damage that is direct and proximate, as distinguished from that which is remote and consequential, and to include only that which is special and peculiar to the petitioner and to those similarly situated, as distinguished from that which is common, affecting generally persons and property in the vicinity. The fact that all precedents would require us to allow only damage of this kind, under section 11 of this chapter, and the improbability that two different rules for assessing damage of this kind would be established by the same statute, lead us to interpret the word 'damage' in the statutory question as meaning special and peculiar, and not general, damage.
But it is to be noticed, in passing, that the...
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