Fifty Associates v. City of Boston
| Decision Date | 18 May 1909 |
| Citation | 201 Mass. 585,88 N.E. 427 |
| Parties | FIFTY ASSOCIATES v. CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H. E. Bolles, Tyler & Young, and Alex. Kendall, for petitioner.
Thos M. Babson, for defendant.
1. We are of opinion that the presiding judge was wrong in ruling that the petitioner was not entitled to recover damages for water coming into the cellar by reason of the removal of the bulkhead. The case was tried on the footing that the petitioner had the rights 'of an ordinary abutter' in State street. That assumes that the petitioner owned the fee in his half of the street subject to the public right to use it for street uses.
The city solicitor has contended that the ruling was right on the ground that street uses include the use of the land below the surface of a street as well as the use of the surface itself and that a tunnel for cars is a street use. The city solicitor is doubtless right as to the proposition which he takes as the ground of his argument, but in our opinion he is wrong in the conclusion which he contends for based on that proposition. That the public easement in a street includes the use of the land below the surface as well as the use of the surface, and that a tunnel is a street use was established in Sears v. Crocker, 184 Mass. 586, 69 N.E. 327, 100 Am. St. Rep. 577. It is also established that the Legislature might have authorized the building of this tunnel without making compensation for bringing to an end the use which the petitioner as owner of the fee had theretofore made of the land under the street. See Boston Electric Light Co. v. Boston Terminal Co., 184 Mass. 566, 69 N.E. 346.
But the question we have to decide is whether as matter of construction of St. 1894, p. 772, c. 548, § 34, St. 1895, p. 486, c. 440, § 1, that is what the Legislature did; and we are of opinion that it is not.
The terms of the statute here in question are like those in case of highways. Rev. Laws c. 48, § 15.
The question whether such statutes should be limited as matter of construction to acts done which are in violation of common-law rights protected by the Constitution, or should be extended to include all acts which in fact cause injury of a special and peculiar kind although not a violation of common-law rights protected by the Constitution, was for a long time a question on which the decisions of this court were not all of them in accord. The question was put at rest by the decision in Hyde v. Fall River, 189 Mass. 439, 75 N.E. 953, 2 L. R. A. (N. S.) 269, in which it was held that such statutes are to be construed to give compensation for all injuries, special and peculiar, and not to be limited to violations of common-law rights protected by the Constitution. See, also, Whitney v. Com., 190 Mass. 531, 77 N.E. 516. See, also, in this connection, McKeon v. New England R. R., 199 Mass. 292, 85 N.E. 475. Although the city had a right to remove the bulkhead, yet if the removal caused an injury to the petitioner's property, the petitioner, by virtue of St. 1895, p. 486, c. 440, is entitled to compensation therefor.
It follows that the exception must be sustained which was taken to the following portion of the charge of the presiding judge:
2. The petitioner asked the presiding judge to give the following ruling: 'The plaintiff in this petition is entitled to recover all damages sustained by it to the property in question occasioned by the construction of the tunnel and its station, and in estimating such damages you are not to take into account the benefit, if any, received by said property from said tunnel and station.' This was refused, and the instruction on this point given to the jury was in substance: That if out of the fact that passengers from the tunnel were landed at the door of the petitioner's store anything had resulted which is a benefit to that store, 'something directly affecting this estate and others just like it,' that benefit could be set off against the damage from the tunnel after the physical damage from the settling of the building had been made good.
We are of opinion that the exception taken to the refusal to give this ruling must be sustained.
The question of the damage done and the benefits which can be set off against it in the case at bar under St. 1895, p. 486, c. 440, § 1, is the same as that arising where action is taken under the highway act (Rev. Laws, c. 48, § 16), and not under the betterment act (Rev. Laws, c. 50). For the difference between the two, see Benton v. Brookline, 151 Mass. 250, 23 N.E. 846; Atkinson v. Newton, 169 Mass. 240, 47 N.E. 1029.
In cases arising under the highway act and similar statutes, the only benefit which can be set off against the damages due to a petitioner for taking his land or other injury done to his property are those which are special and peculiar to the land or property in question. Benefits which are common to the neighborhood cannot be set off. The difference is well illustrated by the instruction given in Whitney v. Boston, 98 Mass. 312, and approved by this court. In that case a court extending from Washington street towards Tremont street was made a street extending to Tremont street by taking a part of the petitioner's land. The jury were told that the defendant city could set off benefits to the petitioner's estate by reason of its being made a corner lot or by reason of a more convenient access to the rear part thereof, but 'the fact, if it be a fact, that the estates fronting on La Grange Place are benefited in other or different ways, such as increased business on the street or in the neighborhood, or in increased facilities for converting dwellings into places of business, would not affect the respondents' claim to have the peculiar benefits set off.' Of this charge this court said: 'The jury were therefore rightly instructed to deduct the direct and peculiar benefits done to the whole remaining estate of the plaintiffs, excluding those which they received in common with other owners of real estate in that vicinity.'
There are cases where the same benefit peculiar to each estate accrues to all the estates in the same street. Compare Hilbourne v. Suffolk, 120 Mass. 393, 21 Am. Rep. 522, with Parks v. Hampden, 120 Mass. 395. See, also, Abbott v. Cottage City, 143 Mass. 521, 526, 10 N.E. 325, 58 Am. Rep. 143, and the cases there cited. But the test is this: Is the benefit in its character a neighborhood benefit? If it is it cannot be set off. The test is not: Is the benefit one which others in the street share?
This rule has been applied in a number of cases. Upton v. South Reading Branch R. R., 8 Cush. 600; Dickenson v. Fitchburg, 13 Gray, 546; Whitney v. Boston, 98 Mass. 312; Allen v. Charlestown, 109 Mass. 243; Parks v. Hampden, 120 Mass. 395; Cross v. Plymouth, 125 Mass. 557. See, also, in this connection, Peabody v. Boston Elevated Ry., 191 Mass. 513, 518, 78 N.E. 392.
The benefit coming from landing the passengers using the tunnel at the door of the petitioner's building is in our opinion a benefit in character common to all stores in the immediate neighborhood and so is not one peculiar to the petitioner, and therefore cannot be set off. It comes within the second class stated in Upham v. Worcester, 113 Mass. 97, 98, 99. That is to say, it is a benefit which would be the subject of a betterment assessment if the Legislature had authorized a betterment assessment in connection with the construction of this tunnel.
The doubt which arises on this point comes from the decision of this court in Shattuck v. Stoneham Branch R. R., 6 Allen, 115. It was held in that case that it was error to exclude evidence offered by the defendant corporation 'that since the...
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