Carlson v. Town of Holden
| Decision Date | 24 June 1970 |
| Citation | 260 N.E.2d 666,358 Mass. 22 |
| Parties | , 1 ERC 1420 Clarence F. CARLSON et al. v. TOWN OF HOLDEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Paul L. Hinckley, Town Counsel, for respondent.
William E. Bernstein, Worcester, for petitioners.
Before WILKINS, C.J., and SPALDING, CUTTER, REARDON and QUIRICO, JJ.
This is a petition for assessment of damages under G.L. c. 79. The case is before us on the exceptions of the town of Holden (town) to the exclusion of questions put by it to two witnesses concerning the suitability of the land in question for particular purposes.
On February 6, 1966, the town took from the petitioners by eminent domain for school purposes a parcel of land containing about fifteen acres located on the northerly side of Shrewsbury Street in that town. The parcel had a frontage of about 175 to 180 feet on the street and it extended about 1,500 feet northerly therefrom. Its width varied from about 560 feet near its southerly end to about 360 feet at its northerly end. It is zoned for single family residences. There is a town water main in the street. There is no public sewer system in the area. The petitioners who are husband and wife purchased the property in 1945 and used it for farm purposes until it was taken from them. They live on the opposite side of the street from this parcel. The husband (Carlson) is sixty-four years of age and has lived in the town all of his life.
Carlson who was the only witness for the petitioners testified that he had become familiar with values of land in the town and in the area in which he lived and that in his opinion the fair market value of the parcel at the time it was taken was $75,000. He testified further that from 1945 to 1966 about 160 single family houses were constructed 'in the area,' and that he had made inquires about the cost of roads and other things necessary to develop the parcel into building lots but he 'had never had anything prepared for it.' He also testified that in his judgment the highest and best use for the property at the time of the taking was for building lots, and that his opinion of value was based on how many lots he thought he could develop in a subdivision. He had made no soil tests for any development.
A qualified real estate appraiser, called as a witness by the town, testified that in his opinion the fair market value of the parcel was $22,750 based on his experience as the broker in the sale of about 500 acres of land in the town over the previous twenty years. He considered the property as development acreage and testified that the best use of the land was for residential purposes. He was familiar with the subdivision control regulations in the town. He said that to develop the parcel to its highest and best use as house lots it would be necessary to make soil tests to determine the suitability of the soil for cesspools or septic tank purposes.
The town then called two additional witnesses. One was Douglas L. Liston (Liston), a civil engineer and land surveyor with experience in sanitary engineering since 1953. The other was William Marhoffer (Marhoffer), a sanitary engineer employed by the Commonwealth since 1956. In 1965 Liston, at the request of the town, made percolation tests of the parcel for the purpose of determining whether the soil would absorb the liquid discharge of the sewer system from the proposed school. Marhoffer was present, also at the request of the town, when the tests were made. He was there to evaluate the land as far as subsurface sewage disposal for a school site was concerned.
They started by digging six test holes to depths varying from six to ten feet, 1 using a power driven backhoe for the purpose. The holes were dug within an area about three acres in size, about half way between the northerly and southerly boundaries. Three of the holes were dug near the westerly boundary, two near the easterly boundary, and one near the middle of the three acre tract. A seventh hole was attempted, but ledge or solid rock was encountered.
The soil characteristics were observed as each hole was dug. After the six holes were dug, five of them were filled with water for the purpose of making percolation tests. Each hole was then observed and checked to determine how long it took for the water therein to drop one inch. In two of the holes the water dropped an inch in eight minutes; and in the other three holes it required over sixty minutes to drop an inch. The area showing the best results in the percolation tests was approved by Marhoffer for the construction of the sewer system for the proposed school.
Counsel for the town asked Liston in direct examination, 'Do you have an opinion as a result of your examination of these test holes in July of 1965 as to whether or not that area tested was suitable for the development of building lots?' After answering affirmatively he was asked, 'And what is your opinion?' Upon objection by the petitioners, the question was excluded. Counsel for the town made an offer of proof that 'If the witness were allowed to answer he would answer that a portion of it was suitable for development purposes, and it would be test holes 1 and 2, and the remainder of his examination was not suitable for sewerage purposes.' The presiding judge said, The town excepted to the exclusion of its question.
Counsel for the town asked Marhoffer in direct examination, 'And as a sanitary engineer * * * do you have an opinion...
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