Gardner v. Inhabitants of Brookline

• Decision Date: 04 September 1879
• Citation: 127 Mass. 358
• Parties: Mary W. Gardner v. Inhabitants of Brookline
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

127 Mass. 358

Mary W. Gardner v. Inhabitants of Brookline

Supreme Court of Massachusetts

September 4, 1879

[Syllabus Material]

Suffolk. Petition to the Superior Court for a jury to assess the damages sustained by the petitioner by the taking of her land by the respondent in constructing and maintaining its water-works under the St. of 1872, c. 343.

At the trial, before Putnam, J., it appeared that the petitioner was the owner of a tract of about fifty-one acres of land on Cow Island, in that part of Boston formerly West Roxbury, and bordering on Charles River. On June 16, 1874, the town acting under the provisions of said act, took seven acres of the land, being a strip two hundred feet in width, extending across the entire tract, and on January 25, 1875, the petitioner conveyed the same to the town, reserving in her deed the right of way across this strip to connect her remaining land. The town determined in 1874 to obtain, and has ever since obtained, its supply of water from this strip of land. Prior to May 1875, the time of the taking set forth in this petition, the respondent had built on this strip of land a filtering gallery, from which large quantities of pure water were daily pumped to a reservoir in the town from which they were distributed. There was evidence tending to prove that the water in the filtering gallery came wholly from the adjoining land by percolation, and not from the river.

The petitioner contended that a portion of the meadow-land embraced in this taking was not only valuable as a source of water-supply to neighboring towns like Dedham and Needham, which had no water-supply, but was essential to Brookline in order to protect; or, if necessary, to extend its own water-supply. Upon this part of the case, they called Edward Sawyer, an experienced hydraulic engineer, who testified that he had been employed by various cities and towns for the purpose of providing water-supply, and had been employed by the town of Brookline to make preliminary examinations for its own supply, and that he was familiar with the land in controversy; that a certain portion of the same was valuable as a source of water-supply, and had a capacity, in his opinion, of 500,000 gallons daily, and that he knew what was paid for such lands. He was then asked by the petitioner the following question: "Taking into account all the demands from any source, and all the requirements from any source that were, in your judgment, reasonable and probable at that time, can you form an estimate of what was the fair value of that low land as a source of water-supply at that time, and if so, what was it?" To which he answered, "A man might reasonably expect to get $ 4000 or $ 5000 for it as a source of water-supply." No objection was taken to this question and answer. The petitioner then asked him the following question: "Taking that tract of two hundred feet in width in which the filtering gallery now is, and assuming that the owners of the adjoining land should dig filtering galleries or wells at a lower level upon that adjoining land and should draw down to that lower level, what in your judgment is the capacity of that filtering gallery for a supply of water?" To this question the respondent objected, and the judge excluded it. The petitioner then asked the witness the following question: "What would be the effect, in your judgment, of sinking wells or filtering galleries, similar to what there are now upon this two-hundred-feet tract, upon the adjoining land of the petitioner, and drawing the water down to a level below that of the filtering gallery?" This question was also objected to by the respondent, and excluded.

The petitioner called Cyrus Cahoon, who was admitted as an expert on the subject of cranberry culture, and who testified that the meadow-land included in the land taken was suitable for raising cranberries, and was capable of producing one hundred barrels of cranberries to the acre, and as to the expense necessary to prepare the land for raising the crop. The petitioner then asked him what was the market value of cranberries in May 1875. The judge, upon the respondent's objection, excluded the question. The witness was then cross-examined by the respondent's counsel, who asked him whether the price of cranberries was lower now than it was in 1875, to which he replied that it was. The petitioner, on reexamination, then asked him what was the price in 1875, to which the respondent objected. The judge excluded the question.

The respondent called Francis Marsh, who testified that he owned meadows in Dedham which were, in his opinion, about the same thing as the petitioner's land; equally as good as that for the purpose of raising cranberries; that he had made an examination of the lands in controversy sufficient to know about them as to their quality, and that within three or four years he had sold fifteen acres of his land in Dedham. It appeared that these meadows were within half a mile of Charles River, that the land of the petitioner was on one side of the river, and Dedham on the other; but it did not appear in what part of the town they were situate, or how near the petitioner's land, nor any other fact relating to them except as above stated. The respondent then asked the witness the price for which he made the sale. The petitioner objected, but the judge admitted the question.

The respondent offered to prove that, at the time of the taking the petitioner's land was largely covered with standing trees, and that since that date the petitioner had cut off a portion of the same and had sold and received the proceeds of the same, and offered evidence as to the value of the wood so taken. The petitioner objected to the admission of this evidence as immaterial. The judge ruled that in the existing state of the pleadings it might be inadmissible, but suggested...