Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authority

• Decision Date: 13 December 1956
• Citation: 335 Mass. 189,138 N.E.2d 769
• Parties: NEWTON GIRL SCOUT COUNCIL, Inc. v. MASSACHUSETTS TURNPIKE AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 769

138 N.E.2d 769

335 Mass. 189

NEWTON GIRL SCOUT COUNCIL, Inc. v. MASSACHUSETTS TURNPIKE AUTHORITY.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 8, 1956.

Decided Dec. 13, 1956.

Richard H. Lee, Boston (James K. Fitzpatrick, Boston, with him), for petitioner.

Albert W. Wunderly, Boston, for respondent.

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

CUTTER, Justice.

This is a petition under G.L. (Ter.Ed.) c. 79, § 14, by Newton Girl Scout Council, Inc. (a charitable corporation hereinafter called the Girl Scouts), for the assessment of damages caused to it by the taking of a wide strip across its camp land in Natick and Weston by the Massachusetts Turnpike Authority (hereinafter called the Authority) for the construction of a toll express motor vehicle highway and an underpass for local access, in accordance with St.1952, c. 354. ¹ The Authority had awarded damages of $3. ² The Girl Scouts introduced testimony indicating damages of $46,710. The case was tried to a jury who found damages of $9,500. In the course of the trial there was testimony that 'the highest and best use of the property was for a camp purpose.' The trial judge, however, (a) excluded substantial testimony offered by the Girl Scouts to show the extent and character of the damage to this use of the property caused by the taking; (b) admitted certain evidence of a witness called by the Authority about a sale of land in the neighborhood, not developed for camping purposes, in which sale the witness had not participated; and (c), as we read the record, failed to charge, as requested by the Girl Scouts, in respect of certain principles of law, which the Girl Scouts claimed were applicable to assessing damages for a taking of this property, peculiarly adapted to a special purpose and having its higheast value for that purpose. The Girl Scouts duly excepted to these rulings on evidence and to the judge's failure to charge as requested.

The property in question, containing before the taking more than seventeen acres of land, was used as a residence camp, for girls. Owned in fee by the Girl Scouts, it was located on the boundary of Natick and Weston on the north shore of Nonesuch Pond. It had been maintained over a period of time in a secluded wooded area and was approached by a winding road through the forest. Prior to the taking, the property constituted an attractive, quiet country area, where some fifty-two girls with sixteen to twenty counselors and staff could engage in a program of swimming, boating, archery, arts and crafts, nature study, dramatics, and music on rural ground unusually accessible for a property of this type for the children in the Greater Boston area for whom it was designed. It was testified that there was no acreage like this near Boston in the area out toward Framingham. The buildings ³ of comparatively little value for ordinary residential purposes were of a character ideally adapted to and equipped for the charitable and educational uses for which they had been built, of giving wholesome rural recreational and educational opportunities to groups of young city dwellers.

Testimony was received that, after the building of an express highway through the property, separating the camp from the portion of the Girl Scouts' land which shielded the camp from the then existing highway, the property could not be used for a young girls' residence camp any more and that its value for that use would be 'practically nil.' The exhibits show that the taking separated the campsite from a large parcel of land, also owned by the Girl Scouts, to the north of the taking and placed a large, modern, double highway athwart some of the Girl Scouts' woodland, thus destroying the seclusion and rural remoteness of the campsite, bringing to it the noise of heavy traffic, see Wright v. Commonwealth, 286 Mass. 381, 372-373, 190 N.E. 593, where traffic noises were taken into account in assessing damages, as well as the risk of unwelcome and unpleasant human intrusion, a matter of natural concern to publis spirited citizens operating a camp for young girls. The chief advantages of the property for its camping use could have been found to be the intangible but very real values inherent in its atmosphere of great privacy in a quiet New England countryside near an attractive pond. The evidence warranted a finding that the highway had utterly destroyed that privacy, and thereby the possibility of giving to the young campers any illusion that they were really camping under natural conditions. When loss of such values can be shown to result from a partial taking of land, the owners are entitled to just compensation for the diminution in the value of their land by reason of this loss. Barnes v. Commonwealth, 305 Mass. 339, 340, 25 N.E.2d 737, 127 A.L.R. 104 (depreciation of value of property by reason of loss of view).

The Girl Scouts, in presenting their case, sought to recover compensation for the essential destruction of their property for the purposes for which they had acquired, developed, and used it. There was evidence that camps of this type were not commonly bought and sold in the area. Consequently, the Girl Scouts were forced to prove damages by other means than evidence of comparable sales. The Authority was supported, in essence by all the trial judge's rulings, in maintaining the position that the measure of damages was market value, on a basis which gave inadequate attention to important elements of value. A substantial amount of evidence of the value of the property for the special uses for which the property was best adapted and had been used was excluded. The result was that the Girl Scouts were in major degree prevented from showing the real character and extent of the money loss which had been suffered.

The general rule is that the measure of damages is the fair market value of the property actually taken at the time of the taking. Tigar v. Mystic River Bridge Authority, 329 Mass. 514, 517, 109 N.E.2d 148. Kinney v. Commonwealth, 332 Mass. 568, 571-572, 126 N.E.2d 365. With this, in the case of a partial taking, is to be included the diminution in value of the remaining land caused by the taking. Trustees of Boston University v. Commonwealth, 286 Mass. 57, 62, 64-65, 190 N.E. 29; Goodyear Park Co. v. City of Holyoke, 298 Mass. 510, 511, 11 N.E.2d 439; Valentino v. Commonwealth, 329 Mass. 367, 368, 108 N.E.2d 556; G.L. (Ter.Ed.) c. 79, § 12, as amended by St.1953, c. 634, § 1. In determining fair market value, the effort is to determine 'the highest price which a hypothetical willing buyer would pay to a hypothetical willing seller in an assumed free and open market." Epstein v. Boston Housing Authority, 317 Mass. 297, 299-300, 58 N.E.2d 135, 137. All the uses to which the property is reasonably adapted may be considered. Tigar v. Mystic River Bridge Authority, 329 Mass. 514, 517-518, 109 N.E.2d 148. Although its 'value for any special purpose is not the test * * * it may be considered, with a view of ascertaining what the property is worth in the market for any use for which it would bring the most.' Conness v. Commonwealth, 184 Mass. 541, 542-543, 69 N.E. 341. See Smith v. Commonwealth, 210 Mass. 259, 261, 96 N.E. 666; Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236.

Under the authorities already cited, the Girl Scouts, in their attempt to show loss of market value, were plainly entitled to present evidence bearing on every use to which the property was adapted, including (but not limited to) the specialized use for which the property was being employed effectively at the time of the taking. It was open to the Girl Scouts (a) to prove the value of the property for use by a charitable or religious organization or for a school group, and the extent to which the taking had injured or prevented that use; (b) to show the extent of the market, if any, for properties adapted for such use; (c) to establish the general basis on which such properties change hands when they do change hands, the various elements of value which are given weight by organizations naturally interested in the acquisition of such properties, and the methods by which such properties are usually acquired; and (d) to present evidence of other similar relevant factors.

It is not to be expected that the properties adapted for such a specialized use will have a very active market or that their market value can be shown by sales of mearby comparable property. Once developed, such properties are rarely abandoned or sold. To assist the trier of the fact of value to reach a just result when such a property is taken by eminent domain, it frequently will be necessary to allow much greater flexibility in the presentation of evidence than would be necessary in the case of properties having more conventional uses. In such cases, for example detailed knowledge by expert witnesses of local prices of land for ordinary residential or commercial use may be far less helpful than knowledge of conditions (relevant to this particular type of property) over a wide geographical area and of the demand for and use of comparable specialized properties by a particular industry or class of users or customers. The property may be of a character where, within fairly wide limits, geographical location has less effect on its value than its adaptability for a particular use. The properties may be of a type, not frequently bought or sold, but usually acquired by their owners and developed from the ground up, so that the cost of land plus the reproduction cost (less depreciation where appropriate) of improvements may be more relevant than in the ordinary case.

The practical problems inherent in the valuation of such properties have been recognized in the Massachusetts decisions, as well as in the authorities generally. Special opportunities for proof of value have long been afforded in cases where it is felt that there...