Joseph De Vries & Sons, Inc. v. Com.
| Decision Date | 04 November 1959 |
| Citation | 339 Mass. 663,162 N.E.2d 269 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Joseph DE VRIES & SONS, INC. v. COMMONWEALTH. |
Thomas S. Carey, Worcester (Joseph S. Virostek, E. Douglas, with him,) for plaintiff.
William D. Quigley, Asst. Atty. Gen., for the Commonwealth.
Before WILKINS, C. J., and RONAN, COUNIHAN, WHITTEMORE and CUTTER, JJ.
The petitioner excepted to the exclusion of evidence of the amount of sand and gravel in its sand and gravel pit in Uxbridge, a part of which was taken by the Commonwealth in March, 1950, and of evidence of the amount of such material in the part of the land which was taken. The trial judge stated that the evidence was excluded on the ground that the petitioner was not entitled to the value of the gravel as merchandise, allowed testimony of the elevation of the land at various points as tending to show that it included mounds containing gravel, and instructed that the gravel was a contributing element in estimating damages to the extent that the jury might say it enhanced that value.
These exceptions must be sustained. The petitioner was entitled to give the jury a full description of the property as a sand and gravel pit with reserves. The jury were to determine the fair market value of what was taken and the diminution in fair market value of what remained in the light of the relevant characteristics and uses of the property. Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authority, 335 Mass. 189, 193-198, 138 N.E.2d 769. Tigar v. Mystic River Bridge Authority, 329 Mass. 514, 517, 109 N.E.2d 148. The judge was right in ruling that the value of the sand and gravel was not the measure of damages and there is nothing to suggest that it was not a wise exercise of discretion to exclude the value of the separable material as a 'confusing and * * * speculative' factor in determining the market value of the property as real estate. See Manning v. City of Lowell, 173 Mass. 100, 102-103, 53 N.E. 160; Providence & Worcester R. Co. v. City of Worcester, 155 Mass. 35, 36, 41, 29 N.E. 56. Compare Maynard v. City of Northampton, 157 Mass. 218, 31 N.E. 1062; Pegler v. Inhabitants of Hyde Park, 176 Mass. 101, 57 N.E. 327; Wellington v. City of Cambridge, 220 Mass. 312, 318, 107 N.E. 976. While testimony of the cubic yardage would be a first step in proof of value, it had independent relevance. In Manning v. City of Lowell, supra, there was evidence of the quantity of sand and its worth in the ground. An exception, which was overruled, attacked the allowance of cross-examination on the issue of the value of the sand. The court said (173 Mass. at page 103, 53 N.E. at page 161), 'All of the evidence relating to the value of the sand as merchandise might have been excluded in the discretion of the presiding justice, as the question in the case was the market value of the land, and not the value of sand.' We do not construe that statement to apply to evidence of the quantity of the material as a part of the description.
We take notice that sand and gravel deposits in this Commonwealth are widespread. In the case of a taking of such deposits there may be a likelihood, as was suggested by some evidence here, that replacement sources may...
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...earth materials referred to therein 'are an ever increasingly precious commodity' in the town. See Joseph De Vries & Sons, Inc. v. Commonwealth, 339 Mass. 663, 665, 162 N.E.2d 269 (1959). It should be obvious from what has been said that we are of the opinion that neither of the plaintiffs ......
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