City of Revere v. Reverse Const. Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG
• Citation: City of Revere v. Reverse Const. Co., 285 Mass. 243, 189 N.E. 73 (Mass. 1934)
• Decision Date: 15 February 1934
• Parties: CITY OF REVERE v. REVERSE CONST. CO.

285 Mass. 243

189 N.E. 73

CITY OF REVERE

v.REVERSE CONST. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 15, 1934.

Appeal from Board of Tax Appeals.

Proceedings before the board of tax appeals by the Revere Construction Company for abatement of taxes assessed by the City of Revere. From the board's decision granting abatements, the City appeals.

Abatements granted in sums found by the board.

W. P. Murray, of Boston, for appellant.

W. F. Porter and J. J. Butler, both of Boston, for appellee.

RUGG, Chief Justice.

This is an appeal by the city of Revere from a decision by the board of tax appeals granting abatements to the petitioning taxpayer, a corporation organized as L. A. Thompson Scenic Railway Company and since changed to its present name.

The proceeding was commenced by petition against the board of assessors of the city of Revere and was so entitled in the records of the board of tax appeals, hereafter termed the board. The appeal to this court was taken in the name of the city of Revere. No question has been raised as to the propriety of this procedure. Commonly, none could rightly be raised. See Bauer v. Mitchell, 247 Mass. 522, 529, 142 N. E. 815. The city is ultimately responsible for the payment of any abatement which may be granted. It may properly prosecute an appeal from an adverse decision by the board. West Boylston Mfg. Co. v. Board of Assessors of Easthampton, 277 Mass. 180, 189, 190, 178 N. E. 531.

The taxpayer on April 1, 1931, was the lessee and occupant of ten contiguous lots of land taxed in three parcels situated on the boulevard at the Revere Beach reservation. The taxpayer held the land under two leases, each for a term of eleven years, expiring in October, 1930, with an option of renewal for a further term of five years, which had been exercised. Structures on the land consisted of a roller coaster called ‘The Cyclone Ride’ and booths for amusement devices and other forms of entertainment. These were to remain the property of the lessee subject to removal within sixty days after the termination of the lease. The leases also provided for the payment of all taxes by the lessee. The board took a view of the premises. It gave an extended hearing from which it is apparent that the amusement business at Revere Beach is much affected by the weather, that the season for operation is between the middle of April and the middle of October, and that the great bulk of the business is done during the three summer months. The board received evidence as to conditions at Revere Beach, concerning altered methods of transportation from street railways and bus lines to automobiles, of congested traffic, inadequate parking facilities, of falling off in patronage, testified to by some witnesses and denied by others, of the taxpayer's figures of gross income and expenses showing losses in operation of the property over a period of five years preceding the assessments, and the return to the owners under the leases, of rental value and sales of comparable property, of opinions by experts, the owners and assessors as to the fair cash value of the property in question, of the original and replacement costs of the roller coaster and other structures, the necessity of extensive annual repairs, the rapidity of obsolescence of such structures and the fickleness of the public in patronizing only the latest designed roller coasters. The board found that the best and most profitable use of the property was its present use, that is, the occupancy of the lots as one parcel for the major attraction of a roller coaster supplemented by the booths for small amusement devices. Substantial abatements were granted.

No question was raised by the pleadings or contested at the trial except that of the fair cash value of the premises. The city in its claim of appeal assigned thirty-one errors of law alleged to have been committed with respect to the admission or exclusion of evidence. The board tries an appeal of this nature as a new case on all issues presented by the petition and answer; a statement that such portion of the evidence is set forth in the record as may be necessary for the consideration of any question of law raised before the board does not purport to be a report of all the material evidence; and the findings of fact made by the board are final where the evidence is not reported. Commissioner of Corporations and Taxation v. J. G. McCrory Co., 280 Mass. 273, 277, 182 N. E. 481;G. L. (Ter. Ed.) c. 58A, § 13.

It was the duty of the assessors to make a fair cash valuation of the estate of the taxpayer. G. L. (Ter. Ed.) c. 59, § 38; Massachusetts General Hospital v. Inhabitants of Belmont, 233 Mass. 190, 205-208, 124 N. E. 21. The board was required to use the same standard of valuation in order to determine whether to grant an abatement. Fair cash value of land and structures thereon depends in no small measure upon the nature and extent of valuable use which can be made of them under existing conditions.

At the argument in this court the city objected to consideration by the board of evidence tending to show that the property had been operated at a loss for a period of five years. The record of evidence does not show that objection was taken to the introduction of this evidence. Incompetent evidence admitted without objection is commonly entitled to its probative value. Hubbard v. Allyn, 200 Mass. 166, 174, 86 N. E. 356;Mahoney v. Harley Private Hospital, Inc., 279 Mass. 96, 100, 180 N. E. 723. No emphasis is placed on this point, however, because it is plain that some evidence was received over the objection and exception of the city tending to show that the business on the land of the taxpayer was running at a loss and that weight was given to such evidence in the decision. Of this general nature was evidence to the effect that, as compared with former years, trolley car feeders to Revere Beach were fewer in number, that a less number of people was coming to the beach, that adjustments for lower rentals were made because the business could not bear the burden of those previously reserved, that the lessors advanced money to pay taxes which the lessee was bound to pay under the leases, the implication being that the lessee could not pay the taxes because of poorer business. There was evidence also as to the cost of insurance. The general effect of this evidence was to indicate operating losses on the property in question. Allusion was made to some of these factors in the decision of the board. It is fairly inferable that the board considered evidence of failing prosperity of the business conducted on the land of the taxpayer as bearing upon its valuation for taxation.

It is the general rule that upon trials to ascertain the fair market value of land taken under eminent domain testimony as to profits derived from business conducted on the land in question is not admissible. The reason is that injury to business in the absence of special statute is not recoverable as damages, and ‘loss to business, as business, is too remote and consequential a damage to be allowed in estimating damage to the real estate on which it is conducted.’ Bailey v. Boston & Providence Railroad Corp., 182 Mass. 537, 539, 66 N. E. 203, 204;Whitman v. Boston & Maine Railroad, 3 Allen, 133, 142;Boston Belting Co. v. Boston, 183 Mass. 254, 259, 67 N. E. 428;Whiting v. Commonwealth, 196 Mass. 468, 470, 82 N. E. 670;Brackett v. Commonwealth, 223 Mass. 119, 126, 111 N. E. 1036, Ann. Cas. 1918B, 863;Powers v. Rittenberg, 270 Mass. 221, 224, 169 N. E. 913. See 7 A. L. R. 163, note, for collection of cases in other jurisdictions. This general rule is not relaxed...