Burt v. Wigglesworth

• Decision Date: 11 March 1875
• Citation: 117 Mass. 302
• Parties: William L. Burt v. Edward Wigglesworth. Same v. Thomas Wigglesworth
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 302

William L. Burt v. Edward Wigglesworth.

Same v. Thomas Wigglesworth

Supreme Court of Massachusetts

March 11, 1875

[Syllabus Material] [Syllabus Material]

Suffolk. Two petitions filed April 16, 1873, under the St. of 1873, c 189, § 2, by the agent employed by the United States under said statute, for the valuation of the respondents' lands, which had been appropriated to the use of the United States for the enlargement of the post-office in Boston. Each respondent filed an answer, admitting all the material allegations of the petition, and requesting to have the assessment made as provided by the statute. Trial in the Superior Court before Pitman, J., who allowed a bill of exceptions in substance as follows:

At a previous hearing before the presiding judge in reference to these cases and others of like kind, whether they should all be heard the present term, the judge decided that they should all be tried at this term; when it was orally agreed between the counsel for the petitioner and the counsel for the respondents, that these two cases should be tried together the agreement was confirmed by the judge, and a single venire afterwards was issued for jurors to try the said cases. After the return of the venire, and after the jury summoned to try these two cases were called in court on the day appointed for trial, but before they were sworn, the petitioner objected to trying these two cases together; but the judge ordered them to be tried together, by one jury, on the ground of the agreement aforesaid, but separate valuations to be made of each estate by separate verdicts.

The petitioner claimed the right to open and close in each case; but the judge ruled that the respondents should open and close; and they did.

The respondents called Joseph Comer, an expert, as a witness, and, while stating his reasons for the value he had given, asked him, "What would be the fair rental value of the land of each of said respondents with a suitable and proper building upon it?" The petitioner objected, the judge overruled the objection and allowed him to testify what in his judgment would be a fair rental of each estate described in the petition, with a suitable building upon it. The witness answered, "eight per cent. on the whole investment, calling the land $ 50 a foot."

The respondents offered in evidence resolves passed by the common council on March 6, 1873, declaring that they approved of the resolves and orders for the widening of Milk Street, the widening and extension of Pearl Street, and the widening of Congress Street between Water and Broad Streets; and that the said council thereby assured the property owners affected by the contemplated changes in the lines of the foregoing streets, that the said resolves and orders would be adopted as soon as the other orders with which they were necessarily connected could be prepared and considered. They also offered in evidence the resolves and orders referred to, to wit, a resolve and order for the widening of Congress Street between Water and Broad Streets, which was passed by the street commissioners February 27, 1873, and by the board of aldermen the same day; also resolves and orders for the widening of Pearl and Milk Streets, which respectively passed the street commissioners February 27, 1873, and the board of aldermen the same day. The respondents were confined to proof of proceedings prior to the filing of the petition in these cases, to wit, April 16, 1873; and they admitted that in fact no widening or extension of either of the streets was made, or any final vote therefor actually passed, making the widenings or extensions, until after April 16.

To the admission of all these records and proceedings the petitioner objected; but the judge overruled the objection, and admitted the testimony; and the following portions of said orders thus put in evidence were read, the petitioner waiving the reading of the remainder. "That the safety and convenience of the inhabitants of the city require that Congress Street should be widened between Water and Broad Streets, and for that purpose it is necessary to take and lay out as a public street or way of said city, a parcel of land belonging to Rufus G. Norris," &c. Also, "The safety and convenience of the inhabitants of the city require that Pearl Street should be widened and extended to Congress and Water Streets, and for that purpose it is necessary to take and lay out for a public street or way of said city, a parcel of land belonging to the heirs of John Tappan."

The petitioner requested the judge to give the following instructions to the jury: "1. That in no event should the present actual fair cash market value of either of said parcels of land, on April 16, 1873, be increased by any real or supposed prospective or future value of either of said parcels of land. 2. That if the jury are instructed that in estimating the present actual fair cash market value of either of said parcels of land, on April 16, 1873, they are to take and include as an element of value any prospective or future value of either of said parcels of...