Beale v. City of Boston

• Decision Date: 19 May 1896
• Citation: 43 N.E. 1029,166 Mass. 53
• Parties: BEALE v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 53

43 N.E. 1029

BEALE v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1896

COUNSEL

Clapp & Glover, for petitioner.

F.E Hurd, for respondent.

OPINION

ALLEN J.

The petitioner had bought a tract of 10 acres of land, and laid it out into house lots and streets; one of the streets being called "Tuttle Avenue," which he had built and graded. He had sold various lots, with rights of way and drainage, but with no ownership of the fee in Tuttle avenue and he owned other lots abutting thereon, as well as some other land near by, abutting on another street, running from Tuttle avenue at right angles.

At the trial the petitioner, in seeking to prove his damages caused by the taking of Tuttle avenue, offered evidence tending to show its value, other than the market value; but the court ruled that no evidence concerning the value of the land taken (i.e. the way itself) could be admitted, except evidence as to the market value of Tuttle avenue, subject to the easements which the petitioner had sold, before the taking and the market value of Tuttle avenue after the taking, when it had become a public way. And the court instructed the jury that they should find the fair market value, before the taking, of the petitioner's land abutting on Tuttle avenue, and add to it the fair market value, before the taking, of the land embraced within the limits of the street, subject to the easements therein, and that they should then find the fair market value of the first tract after the taking, and add it to the fair market value of the second tract after the taking; the damages to be awarded to the petitioner being the difference between the sum of the two market values before the taking and the sum of the two market values after the taking. The jury were thus limited exclusively to a consideration of market values, and this,--having regard to the nature and situation of the land taken,--we think, was erroneous. Ordinarily, where the value of lands or goods is to be ascertained, and they are of such a kind, and so situated, as to be available for sale in the ordinary course of trade or dealing, the market value is perhaps the best test, and under such circumstances it is usually adopted in this commonwealth. Lawrence v. City of Boston, 119 Mass. 126; Moulton v. Water Co., 137 Mass. 167. But market value is not a universal test, and cases often arise where some other mode of ascertaining value must be resorted to. May v. City of Boston, 158 Mass. 21, 29, 32 N.E. 902; Boston & A.R. Co. v. City of Cambridge, 159 Mass. 283, 34 N.E. 382; Handforth v. Maynard, 154 Mass. 414, 28 N.E. 348; Mather v. Express Co., 138 Mass. 55; Green v. Railroad Co., 128 Mass. 221; Murray v. Stanton, 99 Mass. 345; Stickney v. Allen, 10 Gray, 352; Boom Co. v. Patterson, 98 U.S. 403, 408; Town of Troy v. Cheshire R. Co., 23 N.H. 83; 1 Suth.Dam. § 52; Suth.Dam. § 1064. Reed's Petition, 13 N.H. 381.

The petitioner retained the ownership of Tuttle avenue, subject to rights of way and drainage which he had granted therein. This title might not be salable in the ordinary course of dealing, and yet it might have a real value to him, for which he was entitled to be paid. The damage to abutting lots could be measured by the diminution, if any, of market value. Lots not abutting were properly excluded from consideration, as too remote, and only affected in common with the rest of the neighborhood. The petitioner was entitled to compensation for his interest which was taken in Tuttle avenue, and for the injury, if any, to his remaining lots which abutted thereon. Taking both together, how much loss did he suffer? How much less was the value of what he had left, after the taking, than the value of the whole before the taking? Lincoln v. Com., 164 Mass. 368, 376, 41 N.E. 489. So far as the abutting lands are concerned, regard should be had to the market value; but, so far as his interest in Tuttle avenue is concerned, other considerations come in.

The court excluded evidence of the fair value of the improvement made by the petitioner in grading Tuttle avenue, and in putting a sewer into it, and also the increased cost of building on the petitioner's remaining abutting lots by reason of the existing city ordinances and regulations applicable to public streets, and the increased cost of removing the sand, sod, and loam therefrom. But, in estimating the loss to the petitioner, we think all these particulars might be considered not as showing independent and distinct items to be added to his loss (Squire v City of Somerville, 120 Mass. 579), but as elements which might be considered in...