Amory v. Commonwealth

• Decision Date: 09 April 1947
• Citation: 72 N.E.2d 549,321 Mass. 240
• Parties: AMORY et al. v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 240

72 N.E.2d 549

AMORY et al.

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Hampden.

April 9, 1947.

Exceptions from Superior Court; Broad-hurst, Judge.

Proceeding on the petition of Robert Amory and others, trustees, against the Commonwealth for assessment of damages arising from the taking of diversion by Commonwealth, acting through the Metropolitan District Water Supply Commission, of certain waters. The verdict was not satisfactory, and petitioners bring exceptions.

Exceptions sustained.

Before FIELD, C. J., and RONAN, WILKINS, and SPALDING, JJ.

H. D. McLellan, J. T. Noonan, and H. V. Atherton, all of Boston, for petitioners.

N. B. Bidwell, Asst. Atty. Gen., and F. H. Wright, of Great Barrington, for the Commonwealth.

RONAN, Justice.

This is a petition for the assessment of damages arising from the taking and diversion by the Commonwealth, acting through the metropolitan district water supply commission in accordance with St.1927, c. 321, of certain waters of the Swift River in connection with the construction and maintenance of the Quabbin Reservoir, which also receives the waters diverted from the Ware River under St.1926, c. 375, and serves as an additional supply of water for certain cities and towns situated outside the metropolitan water district.

The Chicopee River begins at the confluence of the Ware, Swift and Quaboag rivers and discharges into the Connecticut River, a navigable stream. The petitioners are the owners of land upon the Chicopee River at two different locations. They have a large tract of land on both sides of the Chicopee River in Ludlow, having a frontage of a mile and a half on the river, upon which were located a large number of buildings for the manufacture and storage of jute and hemp products, together with nearly five and one half miles of railroad track, two locomotives and thirteen box cars for transportation to and from these various buildings. A hydroelectric power plant was also located upon these premises. It consisted of a dam having an effective head of forty-one feet, a mill pond, and a power station in which were installed three units having a capacity of three thousand eight hundred seventy kilowatts. There was also space at this satation for another water wheel and generator. Farther up the Chicopee River from Ludlow the petitioners owned several adjoining parcels of land at a place known as Red Bridge, where they also maintained a hydroelectric power plant. This plant consisted of a dam having a head of forty-eight feet, a mill pond, and a power house having two large water wheels and one small one. The power produced at this station at the time of the taking was thirty-eight hundred kilowatts, and it was transmitted from this station to the mill at Ludlow. The only damage claimed by the petitioners is due to the diversion of the water from the Swift River. Being dissatisfied with the amount of the verdict returned in their favor, they bring the case here on certain exceptions to rulings on evidence

1. The Commonwealth was permitted to show that the petitioners' properties at Red Bridge end at Ludlow were damaged by the hurricane of September, 1938, upon the theory that the construction and operation of the Quabbin dam would either reduce or eliminate any future damage to these properties from floods. There was also evidence that this flood was the most severe ever recorded in the western part of the Commonwealth, and that it was not likely to occur again within the next two hundred fifty years. The unusual extent and violence of the flood and the consequential damage due to it have been mentioned in a number of decisions of this court in cases attributable to this hurricane. Hoosac Tunnel & Wilmington R. v. New England Power Co., 311 Mass. 667, 42 N.E.2d 832;Krikorian v. Grafton Co-operative Bank, 312 Mass. 272, 44 N.E.2d 665;Murray v. Continental Ins. Co., 313 Mass. 557, 48 N.E.2d 145.

Statute 1927, c. 321, § 4, provides that all proceedings in relation to takings of property or rights in property shall conform to the provisions of G.L. c. 79, except in certain particulars not now material. In the determination of damages under G.L.(Ter.Ed.) c. 79, § 12, where no part of the land has been taken and where betterments are not assessed, the benefit accruing to the land on account of the taking is to be deducted, and this provision is applicable to the present case by virtue of G.L. (Ter.Ed.) c. 79, § 45, providing that no assessment of damages for the taking of or injury to land shall be made except under c. 79 or c. 80A, if betterments are to be assessed. As showing the legislative intent that this section shall be given the broadest possible scope, it is expressly provided that it is to be applied ‘notwithstanding any general or special act hitherto enacted’ under which the takings might have been made. The section is an important part of c. 79, which was enacted not only for the purpose of establishing uniformity in the taking of land for a public purpose but also in order to secure uniformity in the assessment of damages. Cole v. Boston, 181 Mass. 374, 63 N.E. 1061;Walker v. Medford, 272 Mass. 161, 172 N.E. 248;Malinoski v. D. S. McGrath, Inc., 283 Mass. 1, 8, 186 N.E. 225;Wine v. Commonwealth, 301 Mass. 451, 17 N.E.2d 545, 120 A.L.R. 889. We are of the opinion that in proceedings under St.1927, c. 321, benefits are to be deducted from the damages arising from the diversion of the water in the same manner as in the ordinary taking of land for a public purpose under G.L.(Ter.Ed.) c. 79.

In order to be set off against the damages, a benefit must accrue directly to the land from the public improvement. It must be of peculiar and direct benefit to the land, giving to the land an advantage that it did not possess previous to the taking, and the increase in the market value of the land must be actual and real and one that may be presently estimated with a reasonable degree of certainty. Meacham v. Fitchburg R., 4 Cush. 291;Hilbourne v. County of Suffolk, 120 Mass. 393, 21 Am.Rep. 522;Childs v. New Haven & Northampton Co., 133 Mass. 253;Fifty Associates v. Boston, 201 Mass. 585, 88 N.E. 427;Hall v. Commonwealth, 235 Mass. 1, 126 N.E. 49;Saltonstall v. New York Central R., 237 Mass. 391, 397, 130 N.E. 185. An advantage that is so remote and speculative that it might never result from the public improvement and so cannot add to the present value of the remaining land is not deductible from the damages. The governing principle is well stated in In re Petition of Rogers, 243 Mich. 517, 525, 526, 220 N.W. 808, 812, in these words, ‘Such benefits, to be deducted, must be within the range of present view, capable of financial realization within a reasonable period, and not based upon speculative forecasts contingent upon something so uncertain that it is problematical if it will ever happen.’ This principle has been frequently followed in our own decisions and those of other jurisdictions. Brown v. Providence, Warren & Bristol R., 5 Gray 35;Old Colony & Fall River R. v. County of Plymouth, 14 Gray 155;Boston & Maine R. v. County of Middlesex, 1 Allen 324;Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270;Union Electric Light & Power Co. v. Snyder Estate Co., 65 F.2d 297;Yolo Water & Power Co. v. Hudson, 182 Cal. 48, 186 P. 772;Washington Ice Co. v. Chicago, 147 Ill. 327, 35 N.E. 378,37 Am.St.Rep. 222;Glendenning v. Stahley, 173 Ind. 674, 91 N.E. 234;Western Newspaper Union v. Des Moines, 157 Iowa 685, 140 N.W. 367;Broadway Coal Mining Co. v. Smith, 136 Ky. 725, 125 S.W. 157, 26 L.R.A.,N.S., 565; Swenson v. Board of Supervisors of Town of Hallock, 95 Minn. 161, 103 N.W. 895;State ex rel. State Highway Commission of Missouri v. Pope, 228 Mo.App. 888, 74 S.W.2d 265;Great Northern Railway Co. v. State, 102 Wash. 348, 173 P. 40, L.R.A.1918E 987.

There was no evidence that the petitioners' properties were so situated that they had been or were likely to be damaged by any of the floods which ordinarily occur or which might reasonably be expected to occur in that district. Upon this record, it cannot be reasonably anticipated that a flood approaching in intensity and violence that of September, 1938, will again visit the locus in either the immediate or the distant future. Whatever protection the Quabbin dam might afford against floods, it is plain that such protection was not needed by the petitioners' lands in the condition they were in at the time of the diversion of the waters of the Swift River, and, adequate provisions having been made against damage from floods, no further protection, even if available from the dam, would confer upon these lands a benefit they did not already have. The dam does not confer any special benefit upon these properties. In admitting the evidence that the petitioners' lands were damaged by the flood of September, 1938, on the ground that it could be found that the erection and maintenance of the dam would prevent or lessen such damage in the future, we think there was error.

2. The order for taking, which was dated October 5, 1939, although the actual diversion was made on August 7, 1939, took all the waters of the Swift River at a designated point of diversion, in excess of a flow of twenty million gallons a day. It further provided that no water was to be diverted when the flow was less than this amount and that there should be discharged from any storage created by the Commonwealth a sufficient amount of water to maintain, so far as said storage would allow, a flow of not less than twenty million gallons a day. The order also provided that ‘Any diversion made under this taking shall comply with such regulations and decisions as may from time to time be made with respect thereto by the Secretary of War acting under authority of the Acts of Congress of March 3, 1899, Chapter 425, Section 10, 30 Statutes at Large 1151.’ Title 33 U.S.C.A. § 403.

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