Maher v. Commonwealth

• Decision Date: 28 June 1935
• Citation: 197 N.E. 78,291 Mass. 343
• Parties: MAHER et al. v. COMMONWEALTH. COMMONWEALTH v. AVERY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

291 Mass. 343

197 N.E. 78

MAHER et al. v. COMMONWEALTH.

COMMONWEALTH v. AVERY et al.

Supreme Judicial Court of Massachusetts, Hampden.

June 28, 1935

Exceptions from Supreme Judicial Court, Hampden and Suffolk Counties.

In petition for review, exceptions sustained and finding of referees set aside, and in petition for writ of certiorari exceptions overruled and petition dismissed.

D. E. Hall, Sp. Asst. Atty. Gen., and D. A. Foley Asst. Atty. Gen., both of Boston, for the Commonwealth.

W. C. Giles, of Springfield, for petitioners Maher et al.

RUGG Chief Justice.

These two cases are designed to raise in different forms of proceeding the same questions of law as to rulings made by a board of referees appointed by the Supreme Judicial Court pursuant to St. 1927, c. 321, § 5. That act makes additional provision for the water supply of the metropolitan district by the development of the Swift River. The provisions of that act here material are that an owner of land to be taken for that public enterprise may file a sworn statement with the metropolitan district water supply commission, hereafter called the commission, setting forth the facts on which his claim for damages is based and the amount of such claim. Thereafter the Supreme Judicial Court, upon application by the commission or any other person in interest, may appoint from time to time as the need may exist one or more boards of three referees for determination of the damages. The referees are required to establish their rules of procedure subject to the approval of the court. The referees, upon reference of any claim under section 5 of the act, shall after hearing ‘ determine the amount of damages suffered and shall certify’ their ‘ findings to the commission; which findings shall be conclusive upon all parties except that any party in interest aggrieved by a ruling of the referees on a question of law may object thereto and the supreme judicial court shall have power to review and modify any finding to the extent that it may be an error in that respect, but not otherwise.’

For convenience the parties to these proceedings will be designated respectively the landowners, the referees and the Commonwealth. The landowners, having complied with the preliminary requisites, filed a petition for the appointment of a board of three referees and such referees were appointed. The referees adopted rules of procedure, one of which was to the effect that the ‘ legal rules of evidence shall apply to proceedings before’ them. The referees held hearings and made an extended report of findings, which was filed with the commission. During the hearings, subject to exception by the Commonwealth, evidence was received, requests for rulings were denied, and rulings made. Objections by the Commonwealth were filed to the report of the referees.

The Commonwealth seeks the correction of the alleged errors of law in the action of the referees in alternative petitions, one for review and the other for a writ of certiorari. The general rule is that the function of a writ of certiorari is to correct substantial errors of law committed by a judicial or quasi judicial tribunal which are not otherwise reviewable by a court. Whitney v. Judge of District Court, 271 Mass. 448, 459, 171 N.E. 648. Provision is made by section 5 of this act whereby the court has ‘ power to review and modify any finding’ of referees to the extent that it is erroneous in respect to rulings of law to which objection has been made. This is the remedy set forth in the statute for the correction of errors of law made by the referees. The power to review thus conferred upon the court is not the technical writ of review of G. L. (Ter. Ed.) c. 250, §§ 21 to 36, and described at length in Lynn Gas & Electric Co. v. Creditors' National Clearing House, 235 Mass. 114, 126 N.E. 364. This review is the more flexible power described in many statutes where supervision to correct errors has been conferred upon courts in a considerable variety of instances. Ott v. Board of Registration in Medicine, 276 Mass. 566, 569, 570, 571, 177 N.E. 542, and cases there examined; Swan v. Justices of Superior Court, 222 Mass. 542, 111 N.E. 386; Harper v. Board of Appeal, 271 Mass. 482, 171 N.E. 430; Commissioner of Corporations and Taxation v. J. G. McCrory Co., 280 Mass. 273, 277, 182 N.E. 481; Mayor of Medford v. Judge of First District Court, 249 Mass. 465, 471, 144 N.E. 397. The referees in the present controversy were appointed by the court. Their duties were judicial in nature. While their report was filed with the commission and not returned into court, a measure of control for the correction of material errors of law is recognized as inhering in the court by which they are appointed. Brackett v. Commonwealth, 223 Mass. 119, 111 N.E. 1036, Ann.Cas. 1918B, 863; Selectmen of Danvers v. Commonwealth, 184 Mass. 502, 69 N.E. 320. It follows that the issues raised must be considered on the petition for review and not on the petition for a writ of certiorari.

Although no question has been raised as to the jurisdiction of the court, it must be determined. The governing statute is unusual in that it requires the court to appoint the referees but directs their report to be filed with the commission. That is a State board charged with extensive powers of eminent domain and the payment of all damages arising from the exercise of that right. Full measure of judicial review of material errors of law is preserved in cases where appropriate steps are taken to that end. Kingman, Petitioner, 153 Mass. 566, 27 N.E. 778,12 L.R.A. 417; Mayor & Aldermen of Springfield, Petitioners, 234 Mass. 578, 125 N.E. 847; In re Opinion of the Justices, 234 Mass. 612, 127 N.E. 635; Weymouth, Petitioner, 251 Mass. 359, 361, 146 N.E. 720; Boston v. Chelsea, 212 Mass. 127, 130, 98 N.E. 620.

According to the report of the referees the property of the landowners consisted of one hundred sixty-two and eight-tenths acres of land in Greenwich. In the purchase and development of the property about $80,000 was expended by the landowners. The award of damages for the value of land made by the referees as of September 15, 1933 (the date on which the sworn copy of their sworn statement by the landowners was filed with the referees), was $221,000. On this property is a clubhouse, which is an old farm house attractively remodeled with opportunities for overnight guests, meals, and with the usual equipment of a country club. There is also a separate smaller clubhouse constructed of cobblestones. There is on the property a nine-hole golf course and sufficient land for enlarging to an eighteen-hole golf course. The putting greens are exceptionally good and the fairways are constructed on excellent ground for drainage. On the golf course is an unfailing supply of water so abundant that it could be used for the fairways as well as for the putting greens. There are some pine groves on the land and about fourteen hundred eighty feet of shore line on a pond, fifty-nine acres in area, suitable for boating and fishing. There are also a bathing beach, one lake cottage, and room for the erection of other cottages. The property is situated ‘ in a most beautiful district, with views of surrounding hills which are most attractive.’ It is near the State highway leading from Springfield and Holyoke to towns on the northern border of the Commonwealth and is distant about thirty miles from the former and about twenty miles from the latter city. The property has been used as a country club and for the entertaining of the social and business guests of the landowners. They had also sold golf-playing privileges day by day. The property is available for use as a country club, golf club, boys' or girls' camps or for summer cottages.

One of the landowners testified in substance that the value of his property was $400,000. On cross-examination he testified that that value was based in part, not upon his views as owner but upon what some real estate experts had told him; that he had not formed any opinion as to the fair market value of the property before he had talked it over with real estate experts, and that after such consultation he formulated his opinion as to the value of the property, and that he had raised his opinion of the value of the property by approximately $50,000. Counsel for the Commonwealth moved that this testimony as to value be stricken out, and excepted to the denial of that motion. The same witness testified that to some extent his valuation of $400,000 unquestionably involved in a relatively small amount a peculiar and sentimental value to him and to his partner. Again counsel for the Commonwealth moved that his testimony be stricken out because not founded on a proper legal basis. It does not appear that this landowner possessed any special qualifications to express an opinion as an expert on the value of the land except that he was a part owner. The rule permitting a landowner to testify as to the value of his land in reason rests upon the fact that commonly he is familiar with its characteristics and its availability for actual and potential valuable uses. Menici v. Orton Crane & Shovel Co., 285 Mass. 499, 503-505, 189 N.E. 839, and cases there examined. The testimony of the landowner in the case at bar did not purport to rest on that foundation but rested in substantial respects upon the opinions of others. That was not a proper basis upon which a witness may express an opinion as to value. Fairbanks v. Fitchburg, 110 Mass. 224. This witness also gave weight to the element of sentimental value. That is a factor which ought not to be considered by a witness in expressing an opinion as to market value of land taken by eminent domain. That value means the price that can be obtained...