Sargent v. Town of Merrimac

• Decision Date: 20 June 1907
• Citation: 81 N.E. 970,196 Mass. 171
• Parties: SARGENT v. TOWN OF MERRIMAC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 171

81 N.E. 970

SARGENT v. TOWN OF MERRIMAC.

Supreme Judicial Court of Massachusetts, Essex.

June 20, 1907

COUNSEL

Horace

I Bartlett, for petitioner.

Boyd B Jones and Thomas H. Hoyt, for respondent.

OPINION

LORING J.

This is a petition to obtain compensation for the taking of a lot of land by the defendant town for a water supply. The lot in question contained good water adapted in quantity and quality for the supply of the town. There was evidence that the water in question was the only ground water in the neighborhood fit for the needs of the defendant town, but that there was a lake or pond of water which would be fit in respect of quantity and quality if treated by filtration. The case is here on exceptions taken by the petitioner.

1. The first set of exceptions are those taken to the exclusion of the testimony of two experts called by the plaintiff, Duff and Allen by name. Since the questions which the presiding judge refused to let Allen answer include the one question asked Duff, we shall consider that evidence and that only.

Allen was a civil engineer by profession and had had a large experience as an engineer in the construction of water works for municipalities and water companies. He also had had a large experience in the cost of developing systems of obtaining and producing water supplies, and had testified as an expert in a number of cases involving the value of waterworks and the value of water delivered as a commodity by a water company, and knew of the different sales made of waterworks in New England, the United States and in England.

Allen further testified that in one case he had 'testified to the value of the water in bulk,' and 'as to the value of the land' in a case before commissioners for land taken in Brookline, on the shores of Charles river, in which driven wells were placed by the town, although he did not know anything of the value of the land other than as a source of water supply.

In respect to the land here in question he knew the sources of water supply in Merrimac and the neighboring towns and knew the kind of water furnished by the land in question and the amount of it; and from his knowledge he testified that the owner of this lot of land 'was almost sure to find a market for it for water supply purposes.' There was no suggestion that he knew anything of the value of land in the neighborhood of the locus.

The presiding judge, on objection being made by the defendant, refused to allow Allen to testify (1) what the value of the land here in question was for a water supply at the time of the taking; or (2) what the value of this land was for all the uses to which in the judgment of the witness it was adapted; (3) what the value of the water in this land was, situated as it was at the time of the taking; (4) by what municipalities or communities could the water in this lot of land be used; (5) what was the fair value of the land and water because of its special adaptation as a source of water supply to the communities for which it has a special adaptability; (6) what was the value of the locus, having regard to its special value and adaptability to filter and store water; and (7) assuming that there is in Merrimac no other source of water supply sufficient for the needs of the town, unless the water is treated, what would be the value of this piece of land and the water in it as a source of water supply to the town--the value to the town--over and above the other source of supply by filtration and treatment.

What the petitioner was entitled to receive was the fair market value of the land of her testator as it was at the time of the taking. Market value in this connection does not mean the same thing that market value means when the market value of flour or other things dealt in daily in the market is spoken of. A lot of land cannot have a market value in that sense of the word. What is meant by the market value of land is the value of the land in the market; that is to say, for the purposes of sale.

The market value to which the petitioner was entitled was made up of the value of the land apart from its special adaptability for water supply purposes, plus such sum as a purchaser would have added to that value because of the chance that the land in question might be some day used as a water supply. Moulton v. Newburyport Water Co., 137 Mass. 163.

The underlying contention of the petitioner is that it is idle for the court to tell a jury that she is entitled to this added value because of this chance that her land may be used as a water supply so long as the court refuses to allow her to show what additional sum a purchaser would pay by reason of that special adaptability, and that you do refuse to allow her to show that when you refuse to allow her to show the value of the land for the special purpose.

Without question this evidence would have thrown light on the issue on trial. The objection to it was not that it was not relevant, but that it would or might involve the trial of collateral issues and for that reason was incompetent. That is to say, if this evidence was admitted the court would or might find itself necessarily involved in the trial of collateral issues which would confuse the minds of the jury and unduly protract the trial.

Whether relevant evidence is or is not to be held incompetent on this ground depends upon the view taken of it by the presiding judge (Yore v. Newton [Mass.] 80 N.E. 472), and is a matter which must be left largely to his discretion, although his decision is not necessarily final. See, for example, Bemis v. Temple, 162 Mass. 342, 38 N.E. 970, 26 L. R. A. 254.

The petitioner relies principally upon the cases of Cochrane v. Commonwealth, 175 Mass. 299, 56 N.E. 610, 78 Am. St. Rep. 491, and Conness v. Commonwealth, 184 Mass. 541, 69 N.E. 341, where the opinion of an expert as to the value of mill sites was admitted upon the trial of petitions to recover compensation for land taken, in the first case for a sewer, and in the second case for a park, although the land was not then used for a mill. In Cochrane v. Commonwealth, 175 Mass. 299, 303, 56 N.E. 610, 78 Am. St. Rep. 491, this court said that 'the usual rule should be departed from and testimony of this kind admitted only when without it it is impossible to prove the value of the property in question.'

In the bill of exceptions in the case at bar it is stated that 'Testimony was introduced on both sides of the market value of the land, most, if not all, of the witnesses for the plaintiff, other than Duff and Allen, * * * who were the only experts to the value of water or sources of water supply, stating that they did not consider its value on...