Hyde v. City of Fall River

• Decision Date: 27 November 1905
• Citation: 189 Mass. 439,75 N.E. 953
• Parties: HYDE et al. v. CITY OF FALL RIVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 439

75 N.E. 953

HYDE et al. v. CITY OF FALL RIVER.

Supreme Judicial Court of Massachusetts, Bristol.

November 27, 1905

COUNSEL

J. W. Cummings, E. Higginson, and C. R. Cummings for petitioners.

H. A Dubuque and F. S. Hall, for respondent.

OPINION

KNOWLTON, C.J.

Grade crossings were abolished and changes of streets were made in Fall River, under St. 1900, p. 471, c. 472, by which act the provisions of St. 1890, p. 463, c. 428, as amended by St 1891, p. 734, c. 123, are made applicable to the proceedings, so far as they are not inconsistent therewith. These latter statutes are now found in Rev. Laws 1902, c. 111, §§ 149-160. This is a petition to recover damages for the abolition of the grade crossing of Ferry street. The petitioners owned land next to the crossing on the northerly side of Ferry street. That portion of Ferry street which is within the location of the railroad was discontinued, but the street immediately in front of the petitioners' premises was left without change. Land was taken along the line of the street on the opposite side, on which an embankment was built, beginning some distance from the premises of the petitioners, and gradually ascending, so as to carry the public travel over the railroad in a line just southerly of the former line of Ferry street. Ferry street is 40 feet wide, and the embankment, supported by a wall, is from 5 1/2 feet to 14 1/2 feet high in front of different parts of the petitioners' premises. These premises were built upon close to the line of the street before the change was ordered. The petitioners made various offers of proof tending to show special and peculiar damages, all of which were rejected. After a verdict had been ordered for the respondent, the case was reported to this court upon the question whether, upon the admitted facts and the offers of proof, the petitioners were entitled to go to the jury. There were various other changes in connecting streets at and about the crossing, which we need not consider. By reason of the discontinuance of the street within the location of the railroad, the petitioners, in order to cross the railroad, are obliged to go back on Ferry street, and pass around up the new street and over a bridge. If they suffer damages by reason of the discontinuance of Ferry street at the point where it crossed the railroad, their damage is not special and peculiar, but is the same in kind as that of the general public, although it may be relatively great in degree.

It is well settled that there can be no recovery for such damage. Davis v. County Commissioners, 153 Mass. 218, 26 N.E. 848, 11 L. R. A. 750; Hammond v. County Commissioners, 154 Mass. 509, 28 N.E. 902; Robinson v. Brown, 182 Mass. 266, 65 N.E. 377. They are left with a street nearly 15 feet high and only 40 feet away, built in front of their premises, over which teams are frequently passing. The jury might well find that they have suffered special and peculiar damages in their property from the taking of land and the appropriation of it to this use. The question is whether, under our statutes, there can be a recovery for such damage. The statute which governs this case is that under which Rand v. Boston, 164 Mass. 354 41 N.E. 484, was decided, and the material facts in the two cases are almost identical. Questions of law were very much considered and discussed in that case, one of which was whether special and peculiar damages to real estate can be allowed in similar proceedings under the Public Statutes, if they arise from the taking of land and its appropriation to a use which is similar in its nature to that which an individual owner of the fee might lawfully make without liability. The opinion of the majority of the court conceded that such damages might be recovered by one a part of whose land was taken, but intimated, without deciding, that they could not be recovered by one whose only damage was of that kind. In addition to numerous decisions previously made, and referred to in the discussion of that case, this court has since repeatedly held that such damages may be recovered by one, no part of whose land was taken. Dana v. Boston, 170 Mass. 593, 49 N.E. 1013; Bickford v. Hyde Park, 173 Mass. 552, 54 N.E. 343; Putnam v. Boston & Providence Railroad Company, 182 Mass. 351, 65 N.E. 790; Sheldon v. Boston & Albany R. R. Co., 172 Mass. 180, 51 N.E. 1078. In reference to this kind of damage, therefore, as distinguished from the damage suffered from the taking of a title to other land belonging to them, the petitioners stand, under the latest as well as the early decisions of this court, as they would have stood if a part of their own...