Manning v. City of Lowell
| Decision Date | 04 March 1899 |
| Parties | MANNING v. CITY OF LOWELL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Burke & Corbett, for petitioner.
F.W Qua, for respondent.
The petitioner's land was taken on September 8, 1891, by the respondent, acting under the authority conferred upon it by St.1891, c. 337, for the enlargement of a burial ground. The petitioner, being dissatisfied with the damages awarded him in the superior court, has brought to this court various exceptions which relate to the admission or exclusion of evidence.
1. The first exception relates to the refusal of the court to allow one Dix to testify as to the value of the land in question. The petitioner's land was situated in Lowell, a few hundred feet from the boundary line between Lowell and the town of Chelmsford. The general character of the petitioner's land was not materially different from that of the land on the opposite side of the line in Chelmsford. Dix had lived in the latter town about 29 years, and had been for 11 years an assessor of taxes in Chelmsford, ceasing to hold office in 1889. He had not dealt in real estate in Lowell, nor near this place, but had kept himself informed of values "in this section." He knew of no sales of land in the vicinity of the petitioner's land before the taking thereof, but knew of two sales in the vicinity of the petitioner's land,--one in the autumn of 1892, and the other in the spring of 1893. These sales were of lands 2,200 feet and 1,300 feet away from the petitioner's land by the road, or 500 or 600 feet in a straight line. Dix was a contractor and grader, doing business for the most part in Lowell. He lived within 500 feet of the boundary line, and owned land within 1,500 or 1,600 feet of the petitioner's land.
It has been often said by this court that the question of the qualification of a witness to testify is largely a matter of discretion in the presiding justice. Chandler v. Aqueduct Corp., 125 Mass. 544; Phillips v. Inhabitants of Marblehead, 148 Mass. 326, 19 N.E. 547; Teele v. City of Boston, 165 Mass. 88, 42 N.E. 506. We cannot say in this case that any error was committed. The witness may have been qualified to testify as to the value of lands in Chelmsford, and yet not qualified to testify as to the value of lands in Lowell. Land in one place may have a different value from land in another, although they are similarly situated and near each other. Value depends upon other things than situation, such as the rates of taxation, sewers, water supply, and accessibility to schools, as the counsel for the respondent well argues. It does not appear whether the sales concerning which the witness testified were of lands in Lowell or Chelmsford. Nor does it appear that there were not other witnesses available to the plaintiff better qualified to testify as to the value of his land. See Teele v. City of Boston, 165 Mass. 88, 89, 42 N.E. 506.
2. The second exception relates to the admission in evidence of two questions put on cross-examination to one Jenness, a witness called by the petitioner, and the answers thereto. The petitioner contended that the value of the land in question was greatly enhanced by the presence in it of extensive deposits of building sand, for which there was a steady and continuous demand. There was evidence that there were fully 50,000 loads of sand in the land. Jenness testified on direct examination that the sand was worth in the ground 25 cents per load. On cross-examination he was asked whether, in giving the market value of the sand, he had taken into account the large quantity of sand in the land, the fact that its purchase would require of its purchaser a large outlay in cash, and the loss of interest on the money that might be paid for it. The witness answered that he had not taken all the elements assumed in the question into account. He was then asked what would be the value of the sand, taking these elements into account. He answered 16 or 17 cents, possibly, per load. 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, Providence & W. Co. v. City of Worcester, 155 Mass. 35, 29 N.E. 56. As was said in Moulton v. Water Co., 137 Mass. 163, 167, the value for special and possible purposes is not the test, "but the fair market value of the land, in view of all the purposes to which it was naturally adapted." As the judge, in his discretion, allowed the petitioner to go into the question of the value of the sand as merchandise, it was certainly competent for the respondent to cross-examine the witness, and show, if it could, that the sand was of less value.
3. One Maguire, a witness called for the respondent, testified that in 1889 he was an assessor of taxes for the respondent city that in that year the petitioner had a conversation with him relating to an abatement of the taxes on the land in question and other property; and that the petitioner gave the witness a pencil memorandum, prepared by the petitioner. This memorandum was produced. It showed, among other things, the petitioner's valuation of the land in question, which was very much lower than the value sought to be established by the petitioner at the trial. This evidence was clearly competent as an admission made by the petitioner....
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