Lincoln v. Com.

• Decision Date: 16 October 1895
• Parties: LINCOLN v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 368

41 N.E. 489

LINCOLN v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

October 16, 1895

COUNSEL

Charles S. Lincoln and Elder, Wait & Whitman, for petitioner.

John D Long and Wm. D. Turner, for the Commonwealth.

OPINION

HOLMES J.

This case brings before us once more the question of the rule of damages to be applied when land is taken, and the purpose for which it is taken is such that adjoining land of the same owners is made less in value. The matter was discussed in the former decision of this case (33 N.E. 1046), but we will state our views once more, in the hope of making them somewhat clearer.

When the legislature authorizes something to be done in the neighborhood of a plaintiff's land which diminishes its value, but which would not be actionable at common law if done by a neighboring owner, if the statute provides no compensation, the plaintiff cannot claim any under the constitution, because what is done does not amount to a taking. And even if the thing authorized would be actionable at common law, and a nuisance, but for the statute, still it is not necessarily a taking; and, unless it does amount to that, no compensation can be recovered if the statute does not give it. Titus v. City of Boston, 161 Mass. 209, 36 N.E. 793. See Bacon v. City of Boston, 154 Mass. 100, 102, 28 N.E. 9; Railway Co v. Ogilvy, 2 Macq.H.L.Cas. 229, 235; Ricket v. Railway Co., L.R. 2 H.L. 175, 187. If what is done does amount to a taking, of course, if the statute gives no compensation, an action can be maintained, since the legislature cannot authorize property to be taken without being paid for.

The question what the statute gives compensation for is a matter of construction. But, as the phraseology is likely to be somewhat general, it is desirable that a general rule should be applied. Such a rule exists in England, but under our decisions there are difficulties, which are mentioned in Stanwood v. City of Malden, 157 Mass. 17, 32 N.E. 702, and Taft v. Com., 158 Mass. 526, 547, 548, 33 N.E. 1046. In the former of these cases the English rule is stated a little too broadly. 157 Mass. 18, 32 N.E. 702. One thing seems pretty clear, however, and that is that, if the damages complained of would be a nuisance but for the statute, a court should be more ready to find a remedy under the act than in a case of damnum absque injuria at common law. We mention this because the contrary assumption seems to be made in the third and sixth requests of the respondent, the former of which was given by the court. If the nuisance, instead of being a necessary consequence of what the act allows, is a result of mismanagement, the case is different. Badger v. City of Boston, 130 Mass. 170.

Statutes like the present, which contemplate a taking of land, generally do not provide for compensation unless there is a taking; and therefore, in proceedings under the act, some of the plaintiff's land must have been taken, in order to give him a standing in court. Whether this is just or not, so long as it is within the limits of the constitution, is not for us to consider. It is enough for us that this condition generally is found in the words of the act. See Rand v. City of Boston (decided this day) 41 N.E. 484. If, however, a part of the plaintiff's land has been taken, his locus standi is established, and the question of construction just referred to arises,--as to what, if any, damages shall be allowed for the harm to his adjoining land. Assuming that none of the damages claimed could be recovered under the act, but for the taking, one naturally asks, why should the taking of adjoining land make a difference? The question has been asked a great many times, and the difficulty will be found forcibly stated by Lord Esher in Reg. v. Essex, 17 Q.B.Div. 447, 452. If such a difference is to be made, the foundation for it must be found in the words of the statute. It may be said, to be sure, that the plaintiff gets no more than justice, even if others get less (see Blesch v. Railway Co., 48 Wis. 168, 189, 2 N.W. 113; Essex v. Board, 14 App.Cas. 153, 177); and that when he is compelled to sell the land, we ought to consider all that he naturally would consider in fixing the price for a voluntary sale. A suggestion has been made that the injurious affecting of the plaintiff's land by the use of the land taken, as distinguished from the construction of the works, is a particular injury, different in kind from that which is suffered by the rest of the world. Id. 153, 161, 162. But the distinction remains a somewhat arbitrary one. The case in which it was laid down under the English statutes (In re Stockport, T. & A. Ry. Co., 33 Law J.Q.B. 251) was criticised often before it finally was accepted, although there is no doubt that now it is settled law (Reg. v. Essex, 17 Q.B.Div. 447; Id., sub nom. Essex v. Board, 14 App.Cas. 153, 162, 164, 169, 173, 178). And it is to be noticed that Lord Westbury, Lord Bramwell, and some other judges, vainly insisted, with a good deal of energy, that the language of the statutes allowed similar compensation when no land was taken, even if at common law there would have been no right of action. Ricket v. Railway Co., L.R. 2 H.L. 175, 202; Essex v. Board, 14 App.Cas. 153, 170, 17 Q.B.Div. 477, 450; Buccleuch v. Board, L.R. 5 H.L. 418, 461; Railway Co. v. Brand, L.R. 4 H.L. 171, 215, et seq.

Some damages are allowed by our decisions which could not be suffered except by reason of the taking. The lot from which a part is taken is considered as one whole, as it is in England. Maynard v. City of Northampton, 157 Mass. 218, 31 N.E. 1062. A disadvantageous change in the shape or size of what remains, clearly, is a matter for compensation. And the principle which warrants such allowances was held, logically enough, in Walker v. Railroad Co., 103 Mass. 10, 15, to extend to considering depreciation of value arising from the proximity of a railroad and the running of trains, "so far as it is due to proximity secured by means of taking a part of the petitioner's land, and would not have resulted but for such taking," although it is settled that similar depreciation would not be paid for if no land had been taken. Presbrey v. Railway Co., 103 Mass. 1; Fay v. Aqueduct Co., 111 Mass. 27; Sawyer v. Davis, 136 Mass. 239, 242; Taft v. Com., 158 Mass. 526, 547, 33 N.E. 1046; Rand v. City of Boston, ubi supra. This rule is narrower than that laid down in the Wisconsin and English cases, and if it is open to the objection that it is hard to apply, and too refined for practical purposes, at least it has the advantage of cutting down, and, in theory, of doing away with, the anomaly which those cases recognize. To that extent the damage could not have been suffered but for the taking of the plaintiff's land, whereas, for similar works just outside the plaintiff's land, he could not have recovered, in the case supposed, either at common law or by the constitution. The rule laid down gives the damages, but only the damages due to the taking of the plaintiff's land. It is true that the works might not have been constructed at all, if they had not been put where they were; but this consideration is met by the fact that if they had been constructed just outside his land the plaintiff would have suffered no wrong under the constitution, or at common law, if no statute had been passed, and would have had no remedy under the statute. At all events, the Massachusetts rule has been in force too long now to be questioned. It has been repeated in many cases, and recently was acted on in the former decision of the case at bar. Taft v. Com., 158 Mass. 526, 548, 33 N.E. 1046; Drury v. Railroad Co., 127 Mass. 571, 583, 584; Johnson v. Boston, 130 Mass. 452, 454; Pierce v. Drew, 136 Mass. 75, 85; Cassidy v. Railroad Co., 141 Mass. 174, 178, 5 N.E. 142; Wellington v. Railroad Co., 158 Mass. 185, 189, 33 N.E. 393; Titus v. City of Boston, 161 Mass. 209, 212, 36 N.E. 793.

The statute under which these proceedings took place requires the commonwealth to pay "all damages that shall be sustained by any person or corporation by reason of such taking." St.1889, c. 439, § 4 (amended, after the present taking, by St.1890, c. 270). It is enough to say that these words certainly do not look to any diminution of the liability for taking, as it was construed by the decisions rendered before the passage of the act. The commonwealth had nothing to complain of in the general tenor of the instructions to the jury.

The respondent suggests that harm anticipated from the future use of the sewer cannot be allowed for under the head of damages caused...