Hilbourne v. County of Suffolk
| Decision Date | 27 June 1876 |
| Parties | Alpheus J. Hilbourne v. County of Suffolk |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Middlesex. Petition to the county commissioners for a jury to assess damages for the taking of land for the widening of Washington Avenue in Chelsea.
At the trial before a sheriff's jury, it appeared that, for a part of the distance between the two terminal points of widening, the widening was wholly on one side of the avenue and for the residue of the distance was on both sides of the avenue, so that from some estates, between the two terminal points of widening, land was taken for the widening; but from other estates, between these terminal points, no land was taken.
The presiding officer instructed the jury, that "if there was a general benefit or advantage to the petitioner's remaining real estate received from the widening, but that the same general benefit or advantage was also received from the widening by real estate of other persons on Washington Avenue, no part of whose estates was taken for the widening such general benefit or advantage to the petitioner's remaining real estate cannot be deducted from the petitioner's damages."
The jury returned a verdict for the petitioner. In the Superior Court, the verdict was accepted; and the respondent appealed to this court.
Verdict set aside.
J. L Stackpole, for the respondent.
J. D Ball, for the petitioner.
Where land is taken for a highway by public authority, the owner is entitled to a just and fair compensation for that of which he has been deprived. In determining the amount of his compensation, the direct and peculiar benefit which results to his remaining and adjoining land is to be considered. In an early case, it was said that the rule of damages was "the value of the land taken, the expense of fencing against the road, and the damage done to the land remaining from which is to be deducted the benefit of the road, if any, to the owner of the land." Commonwealth v. Norfolk, 5 Mass. 435, 437. See also Commonwealth v. Coombs, 2 Mass. 489, 492. This rule as to deduction of benefits was afterwards embodied in the statutes. St. 1824, c. 153. Rev. Sts. c. 24, § 31. Gen. Sts. c. 43, § 16. In Meacham v. Fitchburg Railroad, 4 Cush. 291, it was held that there must be some limitation of the general proposition, as stated in the statute; and the rule was laid down that any direct and peculiar benefit or increase of value, accruing to land of the same owner, adjoining or connected with the land taken, and forming part of the same parcel, is to be allowed by way of set-off, but not the general benefit or increase of value received by such land in common with other lands in the neighborhood. This distinction has been observed in all the cases which have been since decided. Upton v. South Reading Branch Railroad, 8 Cush. 600. Farwell v. Cambridge, 11 Gray 413. Dickenson v. Fitchburg, 13 Gray 546. Whitman v. Boston & Maine Railroad, 3 Allen 133. Allen v. Charlestown, 109 Mass. 243. Upham v. Worcester, 113 Mass. 97. From these cases it appears that there are two kinds of benefit received by an estate bounding upon a way laid out, altered or widened: first, the special and direct benefit arising from its own position upon the way...
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...one that may be presently estimated with a reasonable degree of certainty. Meacham v. Fitchburg R., 4 Cush. 291;Hilbourne v. County of Suffolk, 120 Mass. 393, 21 Am.Rep. 522;Childs v. New Haven & Northampton Co., 133 Mass. 253;Fifty Associates v. Boston, 201 Mass. 585, 88 N.E. 427;Hall v. C......
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