Cole v. City of Boston

• Decision Date: 21 May 1902
• Citation: 63 N.E. 1061,181 Mass. 374
• Parties: COLE v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 374

63 N.E. 1061

COLE v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1902

COUNSEL

Harvey N. Shepard and Chas. H. Stebbins, for plaintiff.

Thomas M. Babson, for defendant.

OPINION

BARKER J.

The exception to the refusal to allow the plaintiff to show that in the opinion of a witness, the price at which an adjoining parcel of real estate had been sold about January 1, 1900 was affected to the detriment of the vendor by the passage of St. 1898, c. 452, must be overruled. While the price at which the adjoining land had been sold was competent, an inquiry into the considerations determining the price would open a collateral investigation, which the presiding judge properly might exclude from the consideration of the jury. Old Colony R. Co. v. F. P. Robinson Co., 176 Mass. 387, 57 N.E. 670.

The other exceptions are to the refusal of three requests for instructions, and to the charge so far as it was inconsistent with the requests. The requests were these: 'First, that by chapter 452 of the Acts of 1898 the property rights of the plaintiff were taken for the benefit of the public, for which the plaintiff was entitled to some compensation; second, that chapter 452 of the Acts of 1898 put the burden of an easement upon the property of the plaintiff, for which she was entitled to recover compensation; third, that the jury should find some damage for the plaintiff.' The charge allowed the jury to find damages for the plaintiff by the operation of the statute. It was not the law that the plaintiff was entitled at all events, to recover a verdict for some damage, or compensation for her property rights taken, or the burden of the easement imposed on her property by the statute. Damages or loss in property sustained by any person by reason of the operation of the statute are to be recovered in the manner prescribed by law for obtaining payment for damages sustained by any person whose land is taken in the laying out of a highway. St. 1898, c. 452, § 3, 4. This means that the damages to be awarded are the value of the property taken, and of resulting damages, if any, to the remaining property not taken, less the amount of the special and peculiar benefit, if any, to the remaining property from the operation of the act. Cross v. County of Plymouth, 125 Mass. 557; Abbott v. Cottage City, 143 Mass. 521, 526, 10 N.E. 325, 58 Am. Rep. 143. If the special benefit...