Muzi v. Com.

• Decision Date: 03 December 1956
• Citation: Muzi v. Com., 138 N.E.2d 578, 335 Mass. 101 (Mass. 1956)
• Parties: John MUZI v. COMMONWEALTH.
• Court: Supreme Judicial Court of Massachusetts

Page 578

138 N.E.2d 578

335 Mass. 101

John MUZI v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 8, 1956.

Decided Dec. 3, 1956.

David A. Foley, Boston, Frank Kilburn, Jr., Wayland, for plaintiff.

George Fingold, Atty. Gen., and Floyd H. Gilbert, Asst. Atty. Gen., for the Commonwealth.

Before WILKINS, C. J., and RONAN, COUNIHAN, WHITTEMORE and CUTTER, JJ.

WHITTEMORE, Justice.

The petitioner excepted to the refusal of the trial judge to permit two real estate appraisers to testify to their opinions of the value of the petitioner's real estate in Needham before and after the taking of some of it, on August 5, 1953, for the purposes of the location of the new limited access highway known as Route 128.An appraiser for the respondent was permitted to testify to his opinion subject to the petitioner's objection and exception.The petitioner also excepted to the exclusion of testimony offered to support the qualifications of one of the appraisers.

The petitioner's real estate was located at the junction of the former location of Route 128 and Highland Avenue, and consisted of about 825,000 square feet of land of which some 249,405 square feet were zoned for manufacturing, 280,517 square feet were zoned for business, and 295,211 square feet were zoned for residences.There was located on the land zoned for manufacturing a large garage and showroom with 'gasoline pumps, etc.,' and a large parking space, and on the land zoned for residences there were three houses and outbuildings with them.The greater part of the land taken was in either the manufacturing zone or the business zone.

Each of the three experts was qualified in general as an appraiser of industrial, business or residential real estate through years of experience in buying and selling properties in and about Boston and greater Boston and appraising for court or other purposes.The experience of each with Needham real estate and Route 128 values was as follows: Beck, the petitioner's witness, within a month had testified in court as to the fair value of property in Needham; during the past year or two he had appraised in Needham for mortgage purposes twenty-nine properties; he had made appraisals along Route 128 for courtcases not yet heard; 'in connection with his work [of] appraising various properties out through Needham and the Needham area, he * * * [had] familiarized himself with the sales of other properties' and was 'familiar with the sales of properties * * * in Dedham and Needham.'Donovan, the petitioner's witness, had made appraisals of property in Needham in 1948-1949 but none within the past two years except that of the petitioner's property; 'he visited Needham when he made the appraisal of the Moxie Company'(date not stated) whose offices are 'on RouteNo. 128 just the other side of the railroad tracks from the * * * [petitioner's] property'; in connection with his work of appraisals and sales of property in surrounding towns bordering upon Needham he checked the real estate sales and market in Needham; a law firm had sought his advice in 1950 as to the proper rent of Maloney Motors across the street from the petitioner's property and he made a brief survey of the real estate market in Needham at that time; in 1953he had been given a listing, for sale, of the property in the industrial development 'diagonally across from the Muzi property' and, at the nearest point, approximately 600 feet from it.The trial judge excluded, subject to the petitioner's exception, Donovan's proferred testimony, shown on offer of proof, that in connection with that listing he checked sales and became familiar with the real estate market in Needham.Casey, the respondent's witness, had made appraisals on Route 128 from the northern end to Westwood, and in connection with takings by the Commonwealth, in the town of Needham; he recalled by name five properties on Route 128 (without identification that they were in Needham) which he had appraised 'in connection with the taking'; he had 'appraised other properties, but cannot remember the names'; he had made a survey of the land taken by the State through the towns of Needham, Dedham and Westwood; he was when testifying the owner of 10,000 square feet of residential property in Needham and in 1953he purchased on the thoroughfare parallel to Highland Avenue about 16,000 square feet of land, and removed a large embankment of sand and gravel and moved a house on the lot and sold it; he had within six months purchased land in Westwood, very close to Needham, close to Route 128 off Route 1A--a single lot of land, a house lot.On cross-examination, after his...