Providence & W.R. Co. v. City of Worcester

• Decision Date: 25 November 1891
• Citation: 29 N.E. 56,155 Mass. 35
• Parties: PROVIDENCE & W.R. CO. v. CITY OF WORCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 35

29 N.E. 56

PROVIDENCE & W.R. CO. v. CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

November 25, 1891

COUNSEL

W.A. Gile, for plaintiff.

F.P Goulding, for defendant.

OPINION

BARKER J.

This was an assessment by a jury in the superior court of damages for the taking, on October 9, 1888, of land in Worcester under St.1886, c. 331, for the construction of sewage-works. In the land taken were some 74,500 cubic feet of gravel, such as was sold in market by the yard, and suitable for the construction of the works which the city had in fact built upon the land after the taking. The petitioner's railroad runs from Worcester, through a considerable section of this state and of Rhode Island, to Providence. The petitioner owned adjoining land, not taken, of similar material, and was permitted to show the quantity of gravel upon the land taken and upon the remaining land, and to what depth it could be taken off, what it was suitable for, the means of access to it, and that the only way of getting to the remaining land was by going over that which was taken. The petitioner also introduced evidence to show the market value of the land taken, and the purpose for which it could be used, and that the gravel was available to the railroad for filling, ballasting, concrete, and mason-work, and that its quality for all these purposes was very good. During the introduction of the petitioner's evidence the following questions were asked on direct examination, and excluded under the petitioner's exception: "(1) What was the market value of the same kind of gravel, October 9, 1888, as in its then condition of land? (2) State the cash market value of the gravel per yard at time of taking. (3) How did the taking of this gravel-pit from the road affect the railroad plant? (4) Whether this gravel pit was available in connection with the railroad plant as gravel. (5) Is there any other bank of gravel or means of obtaining gravel for this plant in the city of Worcester? (6) What is the nearest supply of gravel outside of this? (7) Was the railroad prevented from continuing the work of filling Cambridge street, two miles distant, by taking this gravel? (8) Was the gravel-pit, and where the gravel was to be put, within yard limits? (9) Whether [the witness being the petitioner's engineer and road-master] he had done filling in the Worcester yard. (10) What was the expense of hauling gravel from the pit to Worcester, to the yard where you are filling and grading? (11) Was the road prevented from filling and grading its yard in South Worcester by this taking? (12) Was gravel needed to fill and grade that area when this land was taken? (13) Was there any other available supply of gravel in Worcester when this was taken? (14) What was the value of that gravel per yard when taken in the bank where it lay? (15) What was the value of this gravel, situate as it is, in connection with its use in making cement?" In cross-examination the petitioner was not allowed to show the value of gravel per yard as an article of merchandise, or to put the question: "What agreement did the city make with Tatman for payment for taking his land,--nine-tenths of an acre adjacent to railroad?"--it appearing, however, that the negotiation with Tatman was still in progress, and that no deed had been given. Witnesses for the respondent testified as to the value of the land, some without taking account of the gravel, and others taking account of it; and one who included the gravel in his estimate said, upon cross-examination, that people gave from 20 to 30 cents a square yard for gravel for filling. After the respondent's evidence was closed, the petitioner was permitted to show the fair market value of the gravel in the bank where it lay at the time of the taking, and called one witness, who testified upon that point; and was allowed opportunity to call other witnesses to the same point, but did not choose to put in more testimony. In excluding the first of the questions asked as to the market value of the gravel, the court stated that it was upon the ground that the petitioner was not entitled to the value of the gravel as merchandise, and the other similar questions were excluded for the same reason.

The petitioners asked the court to instruct the jury as follows "In taking the land and gravel-pit from the petitioners, the damage to the remainder of the petitioners' railroad plant should be considered and estimated by the jury, in their estimation of the damages sustained by the taking. The uses for which the land taken was adapted as a gravel-pit for the railroad and for the defendant city are both to be taken into account by the jury in their estimation of the fair market value of the land taken upon which the gravel was situated. The availability and location, in connection with the other property and the plant of the P. and W. road, are to be taken into account in estimating the value of the land, and the gravel upon it, by the jury. That the actual market value of the gravel, located as it was when taken by the city from the road, in October, 1888, is to be considered in their estimate of the market value of the whole land taken." The court declined to give the instructions as prayed for, but instructed the jury that the evidence of the value of the gravel in the pit was not substantive evidence on the question of damages, but was to be considered in connection with evidence as to the value of the land as a source of sand and gravel supply. The court further instructed the jury: "The petitioners were not entitled to swell the damages beyond the actual market value by any consideration of its special use. Now, upon the general subject,--how are you to compute the damages?--you are to determine what was the fair market value of the land taken by the city. In determining this the jury ought to determine its capabilities and the purposes for which it may be used, and also that, under the statute, the title to the land was...