Barnes v. Commonwealth

• Decision Date: 29 February 1940
• Citation: 305 Mass. 339,25 N.E.2d 737
• Parties: BARNES et al. v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

305 Mass. 339

25 N.E.2d 737

BARNES et al.

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Plymouth.

Feb. 29, 1940.

Exceptions from Superior Court, Plymouth County; J. W. Morton, Judge.

Proceeding on the petition of Mary P. Barnes and others against the Commonwealth for damages resulting from the taking of land for the construction of a state highway.From an award of damages, petitioners bring exceptions.

Exceptions sustained.

P. B. Buzzell, of Boston, for petitioners.

A. V. Sullivan, Asst. Atty. Gen., for the Commonwealth.

LUMMUS, Justice.

This is a petition for damages resulting from the taking of land in Hingham for the construction of a state highway called the Justice Cushing Way.In general the strip of land taken ran in a southerly direction from Summer Street through the land of the petitioners, leaving to the petitioners a small tract of land to the west of the land taken, and a larger tract, on a high ground with three houses on it, to the east of the land taken.Evidence for the petitioners warranted a finding of damages exceeding $25,000, and the attribution of a large part of the damages to the injury to the remaining land resulting from the contemplated carrying of the proposed way over a railroad by a viaduct high enough to cut off an extensive and desirable view of woods, creeks and marshes from the three houses.The jury awarded as damages $5,020, which was less than the damage according to the only expert witness shown to have testified for the Commonwealth.

The only exception is to an instruction to the jury ‘that any interference with the view from petitioners' remaining property was not in and of itself an element of damage for which they could make any allowance.’The only qualification of that instruction was in the following words: ‘Suppose * * * this road goes up-up over the tracks and it is a high embankment-where the embankment may be a scar on the landscape, the jury have the right as affecting the value of the land, to say whether that was a detriment.’

The instruction given is not to be supported by pointing out that technically no injury to remaining property of a petitioner is ‘in and of itself an element of damage,’ but that such an injury is material only so far as it shows depreciation of the market value of such remaining property because of the taking and consequently the depreciation in value of the whole estate because of the taking of a part of it.The instruction gave the jury to understand that they might consider injury to the remaining land because of any unsightliness of the viaduct itself, but not injury because of its interference with a beautiful view.

The statute, where part of a parcel of land is taken, provides for the inclusion of ‘damages for all injury to the part not taken caused by the taking or by the public improvement for which the taking is made.’G.L.(Ter.Ed.)c. 79, § 12.Rourke v. Central Massachusetts Electric Co.177 Mass. 46, 58 N.E. 470;Beale v. City of...