Peabody v. New York, N.H. & H.R. Co.
| Decision Date | 06 March 1905 |
| Parties | PEABODY v. NEW YORK, N.H. & H. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F. T. Benner and S. H. Foster, for plaintiff.
A. F Clarke, for defendant.
This is an action of tort to recover damages to the plaintiff's property, caused by the wrongful acts of the defendant between June 1 and October 1, 1899, in raising the grade of a part of Buckingham street on which his premises abutted. The work was performed in connection with the construction of the Back Bay Station in the city of Boston under the provisions of St. 1896, c. 516, which authorized the Boston & Providence Railroad Corporation, by the exercise of the right of eminent domain, to take such lands, and make such changes in the public ways as might be required for this purpose; but the work of construction which followed was undertaken and completed by the defendant under an agreement made by it with the corporation. In accordance with the provisions of the act a petition was brought by the plaintiff December 21, 1899 against the corporation to recover damages caused by the changes in grade required by the taking; but it was held he was not entitled to recover, because the acts of the respondent in obstructing the portion of the street opposite the plaintiff's estate were not authorized by statute and he had mistaken his remedy. Peabody v. Boston & Providence R. R. Corporation, 181 Mass. 76, 62 N.E. 1047. After this decision he brought the present suit, and, having obtained a verdict, the defendant brings the case before us on exceptions to the admission of certain evidence of the value of the plaintiff's property before and after the tortious acts complained of and to the instructions given on the measure of damages. There was evidence tending to prove that the windows in the basement story of the house which before the change were above the level of the sidewalk, and wholly unobstructed, were left partly below it by the new grade with open spaces protected by brick walls in front of and around this part of them. These changes not only shut off light from the rooms in the basement, but caused water from the surface of the street, and also snow and ice, to accumulate in such quantities in the wells as to percolate into the cellar, causing dampness, which was communicated to the rooms above. The ceilings and walls of the house were also affected and injured by the weight and pressure upon it, caused by the accumulation of large piles of filling required for the embankment while the work was in progress, and by the embankment itself when completed.
The case thus presented is the ordinary one of decrease in value of real property brought about by a change of grade of a public way on which it abuts, though here the remedy takes the form of an action of tort, rather than of a petition for the assessment of damages, and the plaintiff would be entitled to show the value of his property before the work was begun and after it had been completed. He purchased his estate June 29, 1897, shortly after the statute was passed and when, by reason of the improvements contemplated, it was anticipated that the value of property in the neighborhood would be enhanced; and there was a conflict of evidence whether any advance had taken place, and, if so, whether it had been rapid. There also was evidence, given by the plaintiff without objection, of its rental value at the time of purchase and after the illegal filling in front of the premises, as well as the difficulties he had encountered in getting tenants. Against the objection and subject to the exception of the defendant, he was then permitted to state the price he paid for the property, and the amount received at its sale January 9, 1901, and to show by a witness the sum for which it had been rented in March, 1896. It does not appear that there had been other sales of property in the vicinity during the time of his ownership or prior to the plaintiff's purchase which could have been introduced, and the price paid, and the rental received furnished some evidence of the diminution in value of his estate, unless too remote in time. But it has been often said that no positive rule can be formulated which will apply equally to all cases, and, when questions of the depreciation of real estate are raised, that may be ascertained by comparison...
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