Haven v. Town of Brimfield
| Citation | 345 Mass. 529,188 N.E.2d 574 |
| Parties | Herman J. HAVEN et al. v. TOWN OF BRIMFIELD. Edward J. KILLIAN v. TOWN OF BRIMFIELD. Richard E. SOULIERE et al. v. TOWN OF BRIMFIELD. |
| Decision Date | 04 March 1963 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James F. Egan, Springfield, for petitioners.
No argument nor brief for respondent.
Before WILKINS, C. J., and CUTTER, KIRK, SPIEGEL and REARDON, JJ.
These are three petitions for the assessment of damages under G.L. c. 79 for the taking of three parcels of real estate located in Brimfield. The takings were made for the relocation of Holland Road. The petitions were consolidated for trial before a jury who returned verdicts for the petitioners Haven in the sum of $2,500; for the petitioner Killian in the sum of $500; and for the petitioners Souliere in the sum of $100. The petitioners' consolidated bill of exceptions alleges error by the trial judge (1) in the qualification of one Stoffel as a real estate expert and in the admission of certain testimony given by him, (2) in the admission in evidence of a 'breakdown' between land and buildings of the assessed valuation of the Haven parcel for the years 1958-1960, (3) in the refusal of the trial judge to rule on the petitioners' requests at the hearing on the petitioners' motions for a new trial, and (4) in an answer given in response to a question from the jury after the case had been submitted to them.
In the Haven case, the petitioners introduced evidence that the property comprised 205 acres and had (until 1950) been operated as a dairy farm which was its highest and best use. The taking bisected it and contained some 4 acres of land in a 3,000 foot strip 60 feet wide. The town called as a witness Stoffel, who testified as an expert subject to exception to his qualifications by the Havens. Stoffel was an appraiser for the Commonwealth, with an office in Worcester. He had been making appraisals for seven or eight years prior to the trial and in the preceding two years had been so engaged in various sections of Massachusetts including Brimfield. He had been assigned to the work on road relocation in Brimfield and West Brookfield, had checked titles, assessors' records, had talked land values with 'informed people' in the area, had spent four or five months on this work in Brimfield, and had 'looked at' approximately twenty-eight takings on Holland Road over a distance of four miles. It cannot be said that in accepting the qualifications of Stoffel and permitting him to testify as an expert the trial judge erred. Muzi v. Commonwealth, 335 Mass. 101, 106, 138 N.E.2d 578, and cases cited.
After giving his opinion of the fair market value of the Haven land actually taken, Stoffel on cross-examination stated that he could not give any opinion on the value of the entire Haven farm before and after the taking since he had not based his appraisal on that method of computation. Rather, he had 'figured severance damage * * * on the immediate property that was adjacent to the taking * * * on acreage having an approximate depth of 200 feet along each side of the road' taking into consideration the cost of relocating or rebuilding access points to the road. He said that the area taken was so far removed from the Haven house that no damage to the house resulted. He had not considered the value of the land taken on the basis of its use as part of a dairy farm but rather as best suited to the growing of hay which was its present use. The town had denied that the petitioners had sustained any special damage by virtue of the taking. That the witness failed to consider all possible elements of the damage resulting from the taking goes only to the weight of his testimony. Southwick v. Massachusetts Turnpike Authy., 339 Mass. 666, 670-671, 162 N.E.2d 271; Wright v. Randolph, 340 Mass. 786, 165 N.E.2d 747. The motion to strike Stoffel's testimony was properly denied.
Edward J. Killian, an assessor of Brimfield, testified to the total assessed value of the Haven farm for the years 1958, 1959, and 1960. He was then asked for cross-examination for the separate values placed on the Haven land and buildings for those years, and over the objection of counsel for the Havenes gave the breakdown between land and buildings as it appeared on the assessors' records. General Laws c. 79, § 35, provides that assessed valuations for the three years next preceding the date of a taking may be introduced as evidence of fair market value. 'The use of the assessed value of the subject parcel as evidence of its value is solely dependent on the statute.' Wenton v. Commonwealth, 335 Mass. 78, 81, 138 N.E.2d 609, 611. See also Johnson v. Lowell, 240 Mass. 546, 550, 134 N.E. 627. Since there is statutory recognition of the admissibility in evidence of assessed values we fail to see why a breakdown of them is not permissible as a further aid in the determination of damage. Total assessed value may carry somewhat more meaning when the assessed value of the component parts is known. Elsewhere this has been recognized. Court of Claims Act (N.Y.) § 16, sub. div. 2, Matter of City of New York, 22 Misc.2d 260, 262, 264-265, 194 N.Y.S.2d 259; Gauley & Eastern Ry. v. Conley, 84 W.Va. 489, 498, 100 S.E. 290, 7 A.L.R. 157.
Different parcels of land, even when they are assessed together may, nonetheless, possess separate characteristics which make them distinct. Trustees of Boston University v. Commonwealth, 286 Mass. 57, 62-64, 190 N.E. 29. Haven testified that in his opinion there was no diminution in the value of the farm buildings following the taking, thus giving added justification for admitting the assessment breakdown.
Following the submission of the case to the jury and after the departure of counsel from the court house the judge received the following note from the jury.
'Question
Assessed value of property's (sic) before and after take (sic) of land January 19, 1960.
That is on all three cases:
1. Haven
2. Killian
3. Souliere
Break down of
Land Buildings
Haven
Killian
Souliere
Civil Jury'
Endeavors to locate counsel were fruitless. The judge declined to furnish the information requested and he said, 'I don't recall...
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