Benton v. Inhabitants of Brookline

• Decision Date: 28 February 1890
• Citation: 23 N.E. 846,151 Mass. 250
• Parties: BENTON v. TOWN OF BROOKLINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 250

23 N.E. 846

BENTON v. TOWN OF BROOKLINE.

Supreme Judicial Court of Massachusetts, Norfolk.

February 28, 1890

February 28, 1890

HEADNOTES

COUNSEL

A.A Ranney and A. Blume, for plaintiff.

M. & C.A. Williams, for respondent.

OPINION

W ALLEN, J.

The town of Brookline was authorized by St.1887, c. 18, to alter and widen Beacon street, a highway in the town. The proceedings, except when otherwise expressly provided by the act, were to be according to the laws applicable to the alteration of town-ways, and might be declared to be under the general laws authorizing the assessment of betterments. The location was duly made by the selectmen, and accepted by the town, under the laws authorizing the assessment of betterments. The petitioner had an estate on Beacon street containing about 45,000 square feet of land, on which were two dwelling-houses and a stable. About two-thirds of the land and two of the buildings, and a part of another, were within the location. This is a petition for the assessment of damages occasioned by the taking.

Pub.St. c. 51, § 3, provides that, "in estimating such damages, the value of all buildings on the land, a part of which is taken, shall be included, and there shall be deducted therefrom the value of the materials removed, and of all buildings, or parts of buildings, remaining thereon; and the damages for land taken shall be fixed at the value thereof before such laying out, alteration, or widening." Under the instructions of the court, the damages were ascertained by finding the market value of the 30,000 feet of land taken, with the buildings upon it, and deducting therefrom the value of the right of the petitioner to remove the buildings. No objection was made by either party to this rule of damages, and we have occasion to consider only whether objections made to the application of it are valid.

There was evidence tending to show that the widening and improvement in Beacon street had been in contemplation, and had excited a good deal of attention and discussion, for nearly a year before the final location of the widening, and that this had increased the market value of lands bounding on the street, and had doubled the market value of the petitioner's land. There was conflicting evidence in regard to this. This evidence was relied on by the petitioner to prove the value of the land to be allowed as damages. The respondent asked instructions to the effect that the jury should find the value of the land as if the street had not been widened, and not the price of it as enhanced by the expected improvement. The court instructed the jury to the effect that they were to find the market value when the land was taken, and, if they found that the land was enhanced in value because of the contemplated improvement, the petitioner was entitled to have that considered in estimating his damages, and this, although they should find that the scheme and plan of the improvement contemplated taking the land. The court left the jury at liberty to find that a project of taking the petitioner's land for improving the street increased the value of the land to be taken, and to take such increased value as the measure of damages. They should have been instructed that they should not allow any increase in value of the land which arose from the expectation that it would be taken for a public use. But if the instructions were intended to apply to the case that the plan of improvement did not define the land that should be taken, they would still be objectionable. When the location was finally made, it designated the land, the taking of which could not increase its own value, and the value of which "before such laying out, alteration, or widening" was to be fixed. The meaning of the statute is that damages shall be based upon the value of the land unaffected by the improvement. The language of the original statute was: "In estimating the value of the land cut off for said purposes the land so cut off shall be estimated at its value before the laying out, widening, *** or other alteration; and such estimate shall not include the increased value occasioned merely by such laying out." St.1866, c. 174; St.1868, c. 75. When this statute was revised by St.1871, c. 382, the language was changed to that re-enacted in the Public Statutes. The damage, and the betterment from the widening, are both to be estimated as of the time of the location, and are both predicated upon the value of the land before it was affected by the widening. It is not reasonable to construe a statute which authorizes assessments upon benefits from the laying out of a way, or gives damages upon a value before the laying out, to refer to the formal record location. The benefit and the increased value arise from the expected construction of the way. The location does not construct it, but only renders its contemplated construction more probable. Its location and construction may be so assured before the location that the formal location may make no appreciable difference in the market value of land affected. It would be as reasonable to hold that there could be no assessment for betterments because the increase in market value from the expected construction of the way accrued in anticipation of the record location, as it would be to hold that such increase could be allowed in damages for land taken. Cobb v. Boston, 112 Mass. 181.

There is another consideration which applies to the case at bar, and to all ways laid out by towns. The statute requires that the location of town-ways shall be made by the selectmen or road commissioner, and reported to the town, and accepted in town-meeting, and that notice shall be given to owners of land affected, and the location be filed in the town-clerk's office, at least seven days before the meeting at which it is accepted. Pub.St. c. 49, §§ 67, 71. Apart from the particular evidence in the case, that the proposed plan for widening the street included the petitioner's land that was taken, the precise alteration, with the bounds and measurements, was given to the public more than seven days before the location. If, before such filing, any uncertainty as to the lines of the alteration, and as to what particular land of the petitioner would be taken, may have permitted a value on account of the improvement to be put upon some of the land taken, such value could not have continued after notice to the land-owners and to the public of the exact location. After that, any increased value of the land taken on account of the prospect that the widening would be made must have been merely speculative and fictitious. The public, as well as individuals interested, then knew the fact that if the street was widened the land would be taken, and such land must have lost any market value which it may have acquired from the expectation that it would be benefited by the widening. If the vote of the town was the widening intended by the statute, then the value immediately before that vote was the value intended. Upon the undisputed evidence, it was not competent for the jury to find that at the time the vote was taken, in town-meeting, accepting the location of the widening, the land of the petitioner taken by it was increased in value by the contemplated widening.

The respondent offered to prove that the petitioner's remaining land received a direct, special, and peculiar benefit by reason of the widening of the street which was not shared in by other abutters on the street. The court ruled that it was not competent for the respondent to share such benefit, and excluded the evidence. This ruling excluded proof of benefits to the remaining land which would have been competent in proceedings under the general highway act, and must rest on the proposition that in proceedings under the betterment act (Pub.St. c. 51) benefits cannot be set off against damages, but can be considered only in the assessment of betterments. We think that this ruling was right.

The general highway act, (Pub.St. c. 49, § 16,) which is a re-enactment of long-existing statutes, provides that in estimating the damage sustained by altering a highway "regard shall be had to all the damages done to the party, whether by taking his property, or injuring it in any manner; and there shall be allowed, by way of set-off, the benefit, if any, to the property of the party by reason thereof." Under this statute, the general rule of damage consequent upon the taking of parcels of land for a public way is the diminution in value of the whole land in consequence of taking a part; and, in estimating that, any increase in value of the part of the land not taken, caused specially by the new and altered way, is to be considered. The general benefit to the community, and through that to the land-owner, from new or better roads, is not regarded; but any increase in value to the land from the fact that it lies upon a new or improved way, or is directly benefited by the improvement, is a special or particular or direct benefit, to be offset against the damages, although all other land-owners on the way may be benefited in the same manner. Allen v. Charlestown, 109 Mass. 243; Abbott v. Cottage City, 143 Mass. 521, 10 N.E. 325. If the benefit exceeds the damages, so that the remaining land is more valuable, on account of the improvement, than the whole was before it, the owner can recover no damages; but there can be no assessment on account of benefits.

The owner along whose land the way is laid, or whose land is on the side of a street opposite to that on which the street is widened, may enjoy similar and greater benefits than his neighbor, whose land is taken; but he cannot be called on to contribute to the expense while he whose land is taken is charged with the...