Kinney v. Com.

• Decision Date: 29 April 1955
• Citation: 126 N.E.2d 365,332 Mass. 568
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Carey T. KINNEY et al. v. COMMONWEALTH.

Page 365

126 N.E.2d 365

332 Mass. 568

Carey T. KINNEY et al. v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Feb. 9, 1955.

Decided April 29, 1955.

Frederick M. Myers, Pittsfield, for petitioners.

George Fingold, Atty. Gen., and Max Rosenblatt, Asst. Atty. Gen., for the Commonwealth, submitted a brief.

Before QUA, C. J., and RONAN, WILKINS and COUNIHAN, JJ.

COUNIHAN, Justice.

The petitioners are husband and wife. They bring this petition under G.L. (Ter.Ed.) c. 79, §§ 12 ¹ and 14 (compare G.L. [Ter.Ed.] c. 81, § 7C), to recover damages for a taking of a parcel of land in Stockbridge by the Commonwealth, by eminent domain, for 'an express highway.' The taking was made on May 7, 1952. The petition was tried to a judge and jury who returned a verdict for the petitioners in an amount less than that which they sought. The jury took a view.

The case comes here upon an exception of the petitioners to the refusal of the judge to strike out the testimony of a real estate expert for the Commonwealth on which he based his opinion of the value of the land taken. There was no error. This is the only question before us.

On May 7, 1952, the petitioners were owners of a parcel of land consisting of one hundred five acres on which was an old dwelling house which had been modernized at considerable expense. It had oil heat and seven bathrooms. Attached to it was a one story building connecting with a garage. There were several other outbuildings used for storage of farm tools and hay. There were a chicken coop and a large barn which had stalls for four horses and for twelve head of Angus cattle. It is not entirely clear from the record that the dwelling house was used as a home by the petitioners but it appears to have been assumed that it was so used for at least part of the year.

The parcel taken consisted of about twenty-eight and one half acres. There were no buildings on it. The taking and the construction of the highway divided the larger area into separated parcels without direct access from one to the other. In order to get to the area north of the taking the petitioners would be required to expend $2,000 to improve a right of way which they had over land of others.

The petitioners and their real estate expert contended that before the taking the land owned by them was used for farming purposes and that the taking left such a small area of land around the dwelling house, outbuildings, and barn that it could not be devoted to farming purposes but was suitable only as 'a dwelling area.' The male petitioner valued the premises before the taking at $50,000 and after at $18,000. Their real estate expert fixed these values at $47,000 and $18,900 respectively.

A real estate expert for the Commonwealth fixed these values at $27,500 and $23,500 respectively. When asked to give his reasons for his opinion he said, 'I considered the location of the real estate; the size and topography of the property; the age, construction and condition of the property; the use to which the property was being put; the use * * * which the property had formerly in years gone by been used for; the use to which the property was adapted; the taking by the Commonwealth; the changes by the new highway; sales of somewhat comparable parcels of real estate; the assessed value. I considered that this was not a farm. That it was a home * * * which a man who was engaged in other lines of business could use for his hobbies. It was not a farm. The house was a big modernized two hundred year old dwelling with oil heat and seven baths. It belongs to a class of dwellings where people live who have other means of livelihood rather than the land--I considered the location. I considered it was on a road that was available to Pittsfield. The road that you could get out on. I considered it was a desirable place. I considered the type of land. I considered that there had been some planting of trees, of Christmas trees there, and I considered that was not an unusual condition on a farm where there is stony--where the stones are close to the soil, Christmas trees grow normally. They grow as part of the land. They are there without being...