Amory v. Commonwealth
| Decision Date | 09 April 1947 |
| Citation | 321 Mass. 240,72 N.E.2d 549 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | ROBERT AMORY & others, trustees, v. COMMONWEALTH. |
January 9, 1947.
Present: FIELD, C.
J., RONAN, WILKINS & SPALDING, JJ.
Damages, For property taken or damaged under statutory authority. Eminent Domain, Damages. Water. River. Metropolitan District Water Supply Commission. Evidence, Relevancy and materiality Diversion of water, Of value, Public document, Competency Paper produced on demand. Value. Witness, Expert. At the trial of a petition under St. 1927, c. 321, Section 4; G. L (Ter.
Ed.) c. 79, Section 14, for assessment of damages sustained by the owner of property on the Chicopee River due to the taking and diversion by the
Commonwealth of waters of the Swift River in connection with the construction and maintenance of the Quabbin Reservoir, the Commonwealth was entitled to lessen the amount of damages by reason of a benefit to the petitioner's property resulting from the construction and maintenance of the reservoir only if such benefit was peculiar and direct and resulted in an actual increase in the market value of the property capable of being presently estimated with a reasonable degree of certainty; and, where it appeared that the petitioner's property was adequately protected against ordinary floods which might be expected to occur, it was error to admit evidence of damage caused to the property by the extraordinary floods, unlikely to occur again, accompanying the hurricane of 1938, upon the theory that the construction and operation of the reservoir would either reduce or eliminate any future damage to the property through floods.
The restrictions imposed by the Federal Secretary of War relative to the diversion of waters of the Swift River, which joins and flows into the
Chicopee River and thence into the Connecticut River, a navigable stream over which the Federal government has plenary control, were incorporated in and limited the extent of a taking by the Commonwealth of waters of the Swift River under St. 1927, c. 321, in connection with the construction and maintenance of the Quabbin Reservoir, and evidence of the nature and effect of the restrictions on the flow of water in the
Swift River properly was admitted at the trial of a petition by a riparian owner on the Chicopee River for assessment of damages resulting from the taking.
In the assessment of damages for the taking of waters from the Swift River under St. 1927, c. 321, it would be immaterial that restrictions imposed by the Federal Secretary of War, incorporated in and limiting the extent of the taking, had not been enforced: nonenforcement would not destroy their validity nor prove their abandonment.
Compensation to which a riparian owner on the Chicopee River was entitled by reason of a taking of waters of the Swift River under St. 1927, c.
321, in conformity with and subject to restrictions imposed by the Federal War Department incorporated in the order of taking should be assessed on the basis of a diversion of water to the full extent permitted by the order as of its date; if the restrictions were subsequently made more onerous, thus benefiting the riparian owner, his compensation would not be diminished thereby, and if subsequently the restrictions were made less onerous, a greater amount of water could not be withdrawn without a new taking and a new assessment of damages therefor.
At the trial of a petition for assessment of damages sustained by a riparian owner on the Chicopee River from a taking of waters of the
Swift River under St. 1927, c. 321, in connection with the construction and maintenance of the Quabbin Reservoir, evidence of the possible effect of the installation of an electric generator at the reservoir was inadmissible. A report by the metropolitan district water supply commission under St.
1926, c. 375, Section 1; St. 1927, c. 321, Section 25; G. L. (Ter. Ed.) c. 30, Section 32, setting forth in substance amounts claimed as damages by sundry riparian owners on the Chicopee River for taking of waters of the Ware and Swift rivers, estimates by engineers of the commission of damages sustained by such owners, and amounts paid to them by the
Commonwealth, was not admissible at the trial of a petition for assessment of damages sustained by another riparian owner on the
Chicopee River from a taking of waters of the Swift River.
Not all public documents are evidence of the truth of the matters that they contain.
No error appeared, at the trial of a petition by a landowner on a river for assessment of damages caused by a taking by the Commonwealth by eminent domain of waters of a tributary river, in the exclusion of deeds of other riparian owners on the same river granting a right to divert such waters to the Commonwealth for stated sums and in settlements of the grantors' claims, where the record did not disclose the ground of exclusion.
The judge, presiding at the trial of a petition for assessment of damages sustained by a riparian owner on the Chicopee River through the taking of waters of the Swift River under St. 1927, c. 321, in the exercise of sound discretion properly may admit evidence of sums received from the
Commonwealth by other riparian owners on the Chicopee River in settlement of damages sustained through takings if it appears that the water rights taken from the petitioner are substantially similar to those taken from the other riparian owners save only in the extent of the rights taken, that the takings from them were not too remote in space and time from the taking in question, that the transactions between the Commonwealth and the other riparian owners amounted in reality to a purchase and sale of water rights and nothing more, irrespective of the form in which the transactions with them were clothed, and that the sales by the other riparian owners were voluntarily and freely made by them to the Commonwealth.
It was error to exclude a document offered by a party in evidence after he had produced it at the request of the opposing counsel and the counsel had examined it.
Assessors' valuation of riparian real estate whose value was contended to have been lessened by a taking under St. 1927, c. 321, of water from a tributary river was properly admitted in evidence at the trial of a petition by the riparian owner for assessment of damages.
At the trial of a petition for assessment of damages sustained by a taking of waters of a river by eminent domain, testimony by a witness, warrantably found by the judge to be qualified as an expert, that persons interested in water developing properties would not be willing to invest unless it appeared that a profit of ten or fifteen per cent would be yielded, was relevant.
PETITION, filed in the Superior Court on June 3, 1941. The case was tried before Broadhurst, J.
H. D. McLellan, (J.
T. Noonan & H.
V. Atherton with him,) for the petitioners.
N. B. Bidwell, Assistant Attorney General, & F.
H. Wright, for the Commonwealth.
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 station 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 and 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...
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