Holyhood Cemetery Ass'n v. Inhabitants of Brookline

• Decision Date: 18 June 1913
• Citation: 102 N.E. 340,215 Mass. 255
• Parties: HOLYHOOD CEMETERY ASS'N v. INHABITANTS OF BROOKLINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 255

102 N.E. 340

HOLYHOOD CEMETERY ASS'N

v.INHABITANTS OF BROOKLINE.

Supreme Judicial Court of Massachusetts, Norfolk.

June 18, 1913.

Report from Superior Court, Norfolk County; John F. Brown, Judge.

Petition by the Holyhood Cemetery Association to recover damages for the taking of an easement in a strip of land by the Inhabitants of Brookline. On report. Judgment for petitioner.

Michael J. Sughrue and Jas. J. McCarthy, both of Boston, for petitioner.

Fred H. Williams and Frank M. Copeland, both of Boston, for respondent.

DE COURCY, J.

This is a petition to recover damages for the taking of an easement in a strip of land for the purpose of constructing and maintaining a sewer therein. The only question raised by the report relates to a ruling and certain instructions on the subject of damages given by the trial court.

[1] The judge instructed the jury among other things as follows:

‘The sum to be awarded where real estate is taken is the fair market value of the property having reference to all the uses for which it is adapted. Its value for any special purpose is not the test although it may be considered with a view of ascertaining what the property is worth in the market for any use for which it will bring the most.’

‘In determining damages in a case of this kind, the jury should consider not only the value of the property taken but also the effect of the taking upon that which is left; and in estimating the value of that which is taken, they may consider all the uses to which it might properly have been applied if it had not been taken. Damages are not to be awarded with reference to the peculiar situation or circumstances or plans of the owner or to the business in which he happens to be engaged, but any and all the uses to which that land, considered as property, may profitably be applied, whether contemplated by the owner or not, may well be taken into account by the jury.’

He also ruled that the jury, in determining the value of the easement, might take into consideration the adaptability of the land for cemetery purposes.

The ruling and instructions were correct and in accordance with well-established principles as set forth by this court. Conness v. Com., 184 Mass. 541, 542, 69 N. E. 341;Maynard v. Northampton, 157 Mass. 218, 219, 31 N. E. 1062;Smith v. Com., 210 Mass. 259, 96 N. E. 666, Ann. Cas. 1912C, 1236.

[2] The respondent's argument that the amount found by the jury was excessive might properly have been...