Cole v. Boston Edison Co.

• Decision Date: 09 March 1959
• Citation: 338 Mass. 661,157 N.E.2d 209
• Parties: E. Frances COLE et al. v. BOSTON EDISON COMPANY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 209

157 N.E.2d 209

338 Mass. 661

E. Frances COLE et al. v. BOSTON EDISON COMPANY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 3, 1958.

Decided March 9, 1959.

Morris Shapiro, Framingham, for plaintiffs.

Frank B. Frederick, Boston, for Boston Edison Co.

Francis V. Matera, E. Boston, for Massachusetts Turnpike Authority.

Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.

WHITTEMORE, Justice.

This is a petition for the assessment of damages under G.L.C. 79, for the taking by the respondent Boston Edison Company (Edison) of an easement for purposes of transmission of electricity. The chief issue presented by the respondents' exceptions is whether the prior value of the petitioners' land for purposes of determining the damages is its value just prior to the taking of the easement on December 27, 1955, or its value prior to the taking by the Massachusetts Turnpike Authority (the Authority) on May 12, 1955, by 'Order of Taking No. 44' of the fee in nearby land, including adjacent land of the petitioners. Taking order No. 44 took also Edison's then existing easement which was relocated by the December 27 taking. The Authority was allowed to intervene as a respondent.

The trial judge instructed that the December, 1955, enhanced value controlled, but also instructed the jury to find, as an alternative amount, the difference in value before and after the taking entirely disregarding the turnpike. The parties agreed that 'if the theory of damages upon which the case was submitted to the jury, which included any enhancement in value resulting from the construction of the toll road, should be determined to be wrong, the alternative figure brought in by the jury, which excludes any such enhancement in value, and disregards the toll road completely, plus four per cent interest from December 27, 1955, to and including October 19, 1956, should constitute the damages of the petitioners.'

The respondents excepted to the instructions that the jury should use the enhanced value and to the refusal to instruct that on all the evidence the taking of the easement was a part of the turnpike improvement, that an increase in value from the public improvement cannot be included, and that the jury therefore in determining the fair market value of the petitioners' property just prior to the December, 1955, taking should deduct the amount by which the then value had been enhanced by the construction of the turnpike.

The evidence set out in the bill of exceptions and in the incorporated exhibits shows the relevant state of facts to be as follows: Prior to May 12, 1955, the petitioners were the owners of a tract of land in Framingham, which had a long frontage on Speen Street, near its intersection, southeasterly of the petitioners' land with Route 30. The southeasterly part of this parcel was, beginning in 1955, zoned for light manufacturing and had an area of slightly over five and one half acres. The relevant evidence concerns only this part of the petitioners' land. The land taken from the petitioners on May 12, 1955, was the southeasterly interior corner of this parcel, with an area of a little less than half an acre. A large part of the land so taken underlies a part of the toll plaza of a turnpike interchange. The Authority made nominal awards totaling $2 for the land taken. The bill is silent as to whether the petitioners claimed or were paid a larger sum.

On August 25, 1955, the Authority and Edison entered into a written agreement which in its preambles recited that the Authority was constructing the toll highway under St.1952, c. 354; that the location of Edison's existing and proposed high tension line was in a section of the turnpike, and the location and construction of the turnpike 'will make it necessary to alter the power line as now constructed and as to be constructed in said existing right of way and to relocate the same in a new right of way'; and that the parties had 'reached an agreement as to the apportionment of the work, the expense of carrying out said relocation and alterations, and future maintenance.' The agreement provided in part that Edison would take all steps necessary to acquire easements for a relocation of the power line 'approximately as shown on the plan * * * dated April 22, 1955, annexed hereto'; that the easements would 'be substantially the same as those now owned by Edison in the existing location of the power line'; that the entire cost of relocation would be borne by the Authority excluding cost of installing new lines, but that the Authority would not be liable to reimburse 'damages recovered by or paid to a person over whose land easements have been taken * * * unless the amount * * * has been awarded in judicial proceedings or has been agreed to by the Authority.' The agreement contained Edison's release to the Authority of claims for damages or loss for the taking of Edison's interests by the order of May 12, 1955.

Edison's taking from the petitioners on December 27, 1955, pursuant to this agreement, was an easement in substantially the location shown on the April 22, 1955, plan in a strip through the petitioners' remaining five or so acres zoned for light manufacturing, so located as to leave a part of the land inaccessible to a public way except through the easement and to cause substantial damage.

The head of the survey, layout and transmission, and property transaction division of Edison testified that within the area of the easement there is a 110,000 volt line, which is the heaviest load Edison uses, and a 13,800 volt line; that in the course of the taking made by Edison he went on the petitioners' property ten or fifteen times, the first time in 1954. In the spring of 1955 he was 'on and off the land six or eight times.' The respondents offered to show through this witness, and through an engineer for the Authority, that the Authority 'indicated that the line where the Boston Edison would have to be relocated; generally, that it would have to be on the side of the turnpike interchange where it now is'; that Edison submitted five different locations, three of which included the petitioners' property; and that the engineer for the Authority determined that the location 'where the line now exists' should be the one taken.

Statute 1952, c. 354, § 7, provides in part, 'Whenever the Authority shall determine that it is necessary that any * * * facilities which now are * * * located in, on, along, over or under the turnpike should be relocated in the turnpike, or should be removed from the turnpike, the public utility * * * owning or operating such facilities shall relocate or remove the same in accordance with the order of the Authority.' The statute in § 4(c) provides: 'The term 'cost of the turnpike' shall embrace * * * the cost of demolishing or removing any buildings or structures on land * * * acquired, including the cost of acquiring any lands to which such buildings or structures may be moved * * *.' Section 8 authorizes turnpike revenue bonds 'for the purpose of paying all or any part of the cost of the turnpike * * *.' Section 15 provides that '[a]ll private property damaged or destroyed in carrying out the powers granted by this act shall be restored or repaired and placed in its original condition as nearly as practicable, or adequate compensation made therefor, out of funds provided under the authority of this act.'

1. The takings by the Authority and by Edison were both under G.L. c. 79. See St.1952, c. 354, § 5; G.L. c. 164, § 72. Section 12 of c. 79 provides in part: 'The damages for property taken under this chapter shall be fixed at the value thereof before the taking * * *.' This means 'before the beginning of the entire public work which necessitates the taking.' Connor v. Metropolitan Dist. Water Supply Commn., 314 Mass. 33, 39-40, 49 N.E.2d 593, and cases cited. Thus a person whose land is taken for public use cannot recover the enhancement in value due to the improvement for which the land is taken. Dorgan v. Boston, 12 Allen 223, 231. Benton v. Brookline, 151 Mass. 250, 257-258, 23 N.E. 846; Bowditch v. Boston, 164 Mass. 107, 111, 41 N.E. 132; Smith v. Commonwealth, 210 Mass. 259, 262-263, 96 N.E. 666. In May v. Boston, 158 Mass. 21, 31, 32 N.E. 902, 904, we held that if the original scheme includes the possibility that a parcel will be taken and that parcel is in fact subsequently taken as part of the original scheme and not some other, the owners are not entitled to recover the enhancement resulting from 'the general originally indefinite, plan.'

Decisions in some other jurisdictions lend support to a more guarded statement of the rule: that is that if it was contemplated at the time of the original construction that the land in question would sooner or later be taken for the purposes of the project, the enhanced value is not to be used in determining damages. See for these decisions and those holding that the enhanced value is the measure, annotation 147 A.L.R. 66, 85, 88, and Nichols, Eminent Domain, 3d Ed., § 12.3151. The rule is stated in United States v. Miller, 317 U.S. 369, 379, 63 S.Ct. 276, 282, 87 L.Ed. 336, in words which we think are a more precise and better expression of the concept underlying May v. Boston, supra, than the words used in the May decision: 'If they [the subject lands] were within the area where they were likely to be taken for the project, but might not be, the owners were not entitled, if they were ultimately taken, to an increment of value calculated on...