May v. City of Boston

• Decision Date: 06 January 1893
• Parties: MAY et al. v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 21

32 N.E. 902

MAY et al.

v.CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 6, 1893.

Exceptions from superior court, Suffolk county; JOHN W. HAMMOND, Judge.

Proceeding by Lewis May and others against the city of Boston for damages for land condemned for public improvements. Plaintiffs excepted to the amount allowed. Overruled.

The following instructions were requested by petitioners, and were refused by the court: “Fourth. If the jury believe that the land taken from the petitioners on April 30, 1890, had at and prior to that time been increased in value by reason of the contemplated laying out of a park way, which was to include the land conveyed by the petitioners to the city of Boston on December 23, 1884, but not the land for the taking of which the petitioners claim damages, the jury may include such increase in their estimate of damages. Fifth. If the jury believe that the land taken from the petitioners on April 30, 1890, had at and prior to that time been increased in value by reason of the likelihood that a public park was to be constructed, adjoining, but not including, said land so taken from the petitioners, the jury may include such increase in value in their estimate of damages. Sixth. If the jury believe that the land taken from the petitioners on April 30, 1890, had at and prior to that time been increased in value by reason of the likelihood that the parcel of land conveyed on December 23, 1884, by the petitioners to the city of Boston for the purposes of a public park was to constitute a portion of a more extended park way or system of parks, they may include such increase in value in their estimate of damages. Seventh. The provision in the deed of December 23, 1884, from the petitioners to the city of Boston, that a strip of land, not less than sixty-five feet wide, adjoining the remaining land of the grantors, should forever be and remain a public way, although in form a condition, constituted a restriction enforceable in equity, and if the jury believe that the land taken from the petitioners was increased in value at and prior to the time of such taking by reason of its abutting upon a public way, they may include such enhancement of value in their estimate of damages.”

The petitioners called as a witness Alfred D. Chandler, who testified as an expert to the value of petitioners' land, and further testified that the Brookline Land Company, of which witness was president, had sold in November, 1891, through the witness, a parcel of land, containing about 100,000 square feet, on Pond avenue, and directly opposite the land of the petitioners, and was asked by the petitioners at what price said sale was made, but the court excluded the same, to which the petitioners excepted.

T.J. Gargan and B.L.M. Tower, for petitioners.

T.M. Babson, for defendant.

KNOWLTON, J.

The question principally discussed in this case is how to apply the rule for the estimation of damages for land taken for a public improvement, when the improvement has been long contemplated, and the expectation of it has increased the market value of the land in the vicinity. An owner of land taken by right of eminent domain is to be compensated by the payment of the fair value of it at the time of the taking. Ordinarily, the price at which such land will sell in the market, if there is a market for it, is the criterion by which to make the estimate. But in certain cases the market price is not the true standard by which to determine the value. By Pub.St. c. 51, § 3, it is provided that in laying out, altering, or widening highways, “the damages for the land taken shall be fixed at the value thereof before such laying out, altering, or widening.” In the present case the damages are to be estimated as in cases of laying out, altering, or widening highways. St.1875, c. 185, § 5. It was evidently the purpose of the legislature not to permit landowners to recover damages for the land taken for a public use at a value enhanced by a public improvement which owes its existence to the change of use of the very land which is to be paid for. Land taken is to be paid for at its value. Its value is to be determined by a consideration of the uses to which it is adapted. Its market value cannot legitimately be founded on anything else. It may have a...