Consolini v. Com.

• Decision Date: 03 December 1963
• Citation: Consolini v. Com., 194 N.E.2d 407, 346 Mass. 501 (Mass. 1963)
• Parties: John R. CONSOLINI v. COMMONWEALTH.
• Court: Supreme Judicial Court of Massachusetts

Page 407

194 N.E.2d 407

346 Mass. 501

John R. CONSOLINI v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Oct. 10, 1963.

Decided Dec. 3, 1963.

Frederick M. Myers, Jr., Pittsfield, for petitioner.

Rudolph A. Sacco, Asst. Atty. Gen., for the Commonwealth.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

SPIEGEL, Justice.

This is a petition for the assessment of damages under G.L. (Ter.Ed.)c. 79, § 14, for a taking of about eleven acres of the petitioner's land in the town of Sheffield.The case is here on exceptions of the petitioner to the admission and exclusion of evidence.

The land taken formed part of a parcel of about twenty-four acres, all of which was 'gravel bearing land.'The petitioner owned additional land to the east and south of this parcel.The 'highest and best use' of the land at the time of the taking was 'for a gravel bed.'

The petitioner excepted to the exclusion of evidence of a royalty agreement in effect at the time of the taking.This agreement provided for payment of a certain price for gravel removed from the twenty-four acre parcel.He also excepted to the exclusion of evidence of the fair market value, at the time of the taking, of 'gravel in the bank' in the area taken.

The petitioner cites the cases of Providence & Worcester R. R. Co. v. Worcester, 155 Mass. 35, 29 N.E. 56, andWellington v. Cambridge, 220 Mass. 312, 318, 107 N.E. 976, 977, and maintains that under these decisions the court was in error in excluding the evidence.In the Providence & Worcester case the question of whether evidence showing 'the value of gravel as it lay in the bank' was admissible was not before this court, since an exception had not been taken to its admission.In the Wellington case there was no assertion that the trial judge was bound to admit this evidence.To the contrary, this court stated that where land and gravel beds were taken evidence of the value of the unexcavated gravel was 'admissible in the discretion of the court.'

This court recently considered the question whether a trial judge could exclude evidence of the value of the separable material in determining the compensation to be paid to the owner of a gravel bed which had been taken by the Commonwealth.We held that such evidence might be confusing and speculative and that its exclusion was within the 'wise exercise of discretion' of the trial judge.Joseph De Vries & Sons, Inc. v. Commonwealth, 339 Mass. 663, 664-665, 162 N.E.2d 269.There was no error in excluding the evidence.

The petitioner also excepted to the exclusion of evidence of the prices at which gravel bearing land immediately contiguous to the area taken, and 'identical' therewith, was sold within a few months of the taking.The land was sold in two parcels.One had an area of one fifth of an acre and the other, an area of forty acres.

The respondent's principal argument against the admission of this evidence appears to be based upon the size of the lots sold and that '[t]his difference is a strong factor in determining whether the parcels were similar.'This court held that where the respondent took a thirty acre tract, the petitioner's evidence of the sale price of lots which had been subdivided from a similar tract was admissible.Fourth Nat. Bank...