Lee v. Com.
| Decision Date | 07 March 1972 |
| Citation | 361 Mass. 864,281 N.E.2d 239 |
| Parties | Thomas J. LEE et al. v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles Ingram, Sp. Asst. Atty. Gen., for the Commonwealth.
George A. McLaughlin, Sr., Boston, for Thomas J. Lee and another submitted a brief.
Before TAURO, C.J., and CUTTER, QUIRICO, BRAUCHER and HENNESSEY, JJ.
RESCRIPT.
This is a petition for the assessment of damages arising out of a taking by the Commonwealth of land owned by Lee. The case was tried before a jury in the Superior Court and a verdict was returned for Lee. The case is before us on the Commonwealth's bill of exceptions which is concerned solely with several rulings on evidence by the judge. Four of the rulings have been argued before us by the Commonwealth. We treat the issues not argued as waived. There was no error in the judge's rulings. The judge excluded, over the Commonwealth's objection and exception, certain documents which showed restrictive agreements which encumbered the land. These restrictions may fairly be summarized as providing that if Star Market Co. were the buyer, the land would be free of restrictions; if an outsider offered to buy the ar Market Co. had forty-five days in which to meet the offer; at the expiration of forty-five days without a purchase by Star Market Co. the outsider could buy the property free of resrictions. The judge correctly ruled that these restrictions could have no measurable effect upon the fair market price of the land, and their introduction in evidence might well serve only to confuse the jury. The Commonwealth also contends that there was error in the judge's refusal to strike the opinion, as to fair market value of the land, of an expert witness introduced by the petitioner. The witness based his opinion in part upon the factors from which a potential buyer might expert a change from residential zoning to business zoning. The ruling of the judge was correct since, upon all the evidence in the case, the jury could warrantably find that a willing buyer's evaluation of the land could be influenced by the possibility of a change in zoning. Wenton v. Commonwealth, 335 Mass. 78, 82, 138 N.E.2d 609. There was also no error in the judge's refusal to strike the same expert's opinion as to the fair market value of the land upon the basis, also urged by the Commonwealth, that all comparable sales considered by the expert were in Cambridge, rather than in Arlington...
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