Fourth Nat. Bank v. Com.

• Decision Date: 25 May 1912
• Citation: 212 Mass. 66,98 N.E. 686
• Parties: FOURTH NAT. BANK OF BOSTON et al. v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

212 Mass. 66

98 N.E. 686

FOURTH NAT. BANK OF BOSTON et al. v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1912

COUNSEL

Dana Malone and Geo. S. Fuller, both of Boston, for respondents.

John R Murphy and Walter A. Buie, both of Boston, for Fourth Nat Bank and John Fottler.

OPINION

BRALEY J.

The petitioner's land having been taken in fee for the use of the public under the St. of 1909, c. 535, and a jury having been asked for and damages assessed as provided by the statute, the case is before us on the respondent's exceptions, which were confined at the argument to alleged errors in the admission and exclusion of evidence. The land comprising a tract of nearly 30 acres divided into building lots, fronted on the northerly side of a public way, and the tier of lots abutting on the way, being more attractive to purchasers, would command a higher price in the market than the portions not so advantageously located. If the measure of damages was the fair makret value of the whole parcel, yet the petitioner would not have been precluded from introducing evidence of the price received from actual sales of these lots. But as no sales had been made evidence of this character was not available, and it was permitted to offer evidence of sales of lots for cash, or where the purchase price was payable partly in money, and the balance secured by a mortgage back from the purchaser, which abutted on the south side of the way directly opposite the land in question. It long has been settled, that in the assessment of damages where lands are acquired by eminent domain evidence is admissible of the price received from sales of land similar in character, and situated in the vicinity, if the transactions are not so remote in point of time that a fair comparison practically is impossible. Wyman v. Lexington & West Cambridge R. R., 13 Metc. 316, 326; Paine v. Boston, 4 Allen, 168; Benham v. Dunbar, 103 Mass. 365. It rests very largely within the province of the presiding judge to determine in his discretion if the evidence shall be accepted or rejected. Paine v. Boston, 4 Allen, 168; Shattuck v. Stoneham Branch R. R., 6 Allen, 115, 117; Ham v. Salem, 100 Mass. 350, 352. The conditions which often may make the decision difficult vary with the circumstances of each case, and are amply pointed out by Morton, J., in Lyman v. Boston, 164 Mass. 99, 104, 105, 41 N.E. 127. The decision of the trial judge if manifest error is affirmatively shown by the excepting party is however reviewable. Presbrey v. Old Colony & Newport Ry., 103 Mass. 1, 8; Chandler v. Jamaica Pond Aqueduct, 122 Mass. 305, 307; Muskeget Island Club v. Nantucket, 185 Mass. 303, 70 N.E. 61. But the respondent fails to point out elements of dissimilarity sufficient to render the evidence irrelevant, and prejudicial. The lots sold were in the same street...