Southwick v. Massachusetts Turnpike Authority

• Decision Date: 04 November 1959
• Citation: 339 Mass. 666,162 N.E.2d 271
• Parties: Thomas E. SOUTHWICK v. MASSACHUSETTS TURNPIKE AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 271

162 N.E.2d 271

339 Mass. 666

Thomas E. SOUTHWICK v. MASSACHUSETTS TURNPIKE AUTHORITY.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 22, 1959.

Decided Nov. 4, 1959.

John J. O'Connell, Northampton, for plaintiff.

Edward P. Healy, Worcester, for defendant.

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

CUTTER, Justice.

On January 27, 1955, and on July 12, 1956, by two takings, the respondent (the authority) took by eminent domain in the aggregate 1.37 acres of the petitioner's large ¹ tract of land in Sturbridge. There were on the land at the time of the takings a dam 350 feet long, made of earth reinforced with stones, and a spillway 'in fair condition.'

The dam had formerly been used to hold back a pond, covering about 25 acres. The dam, however, had been broken 'possibly 20 years ago' for a distance of '25 to 30 feet wide,' and the bed of the old pond had grown up to brush, alders, and other vegetation. A brook 'with a fast * * * heavy flow' ran through the land.

After the takings, about half the dam was on the petitioner's land and half on the land of the authority. Of the 'breached portion of the dam,' the authority thereafter owned one third and the petitioner two thirds, but 'now you couldn't fill in the breached portion of the dam to stop the water without going on land of the toll road; * * * you would have to construct a new dam.' The spillway was wholly taken. An engineering witness testified that the 'cost of repairing the old breach' in the dam would be $4,000.

These facts could have been found from the evidence at a trial of a petition for assessment of the damages arising from the takings. A verdict of $2,000 for the petitioner was returned. The petitioner's exceptions are to the action of the trial judge in excluding, or striking from the record, certain evidence offered in behalf of the petitioner.

1. The petitioner testified that the fair market value of his property before the takings was $50,000 and after the takings was $3,000; that he planned 'to put in camp sites * * * after the gap in the dam was filled in, and that's where the value was'; and that he also 'considered the property as a pond for a fish and game association, or some club.' Questions were asked of him about engineering estimates of the cost of constructing a new spillway, about his plans for development of the property for camp sites, and about the 'active steps * * * to formulate a plan of development for * * * [his] property.' The answers were excluded or, where answers were given in the first instance, were ordered struck from the record. The petitioner admitted on cross-examination that, after his acquisition of the property in 1937, 'he didn't do anying to build up the dam and * * * didn't improve the rest of the land * * * except to cut some * * * bushes' and that 'there were no buildings * * * [or] improvements * * * except that he had one of the parcels surveyed.' He 'considered the highest and best use of his property was for camp sites or to be sold as a single unit for a camp such as a rod and a gun club or the like * * *; that the brook was full of trout.' At the close of the petitioner's testimony, on objection that his opinion was based 'on a futuristic plan which had no real basis for it,' all the petitioner's testimony on value was ordered struck from the record. Offers of proof were made 'that in 1949, in 1950, and in 1952, he employed an engineer to survey the property for the purpose of developing a plan for lots, and that the property was surveyed for this purpose, [and] that he estimated what it would cost to clear the brush * * * and * * * to build roads.'

An owner of real estate or personal property having adequate knowledge of his property may express an opinion as to its value. Menici v. Orton Crane & Shovel Co., 285 Mass. 499, 503-505, 189 N.E. 839; Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authority, 335 Mass. 189, 198, 138 N.E.2d 769. See Wenton v. Commonwealth, 335 Mass. 78, 82-83, 138 N.E.2d 609. Cf. Rubin v. Town of Arlington, 327 Mass. 382, 383-385, 99 N.E.2d 30. These decisions establish that whether the witness has the necessary knowledge about his property to enable him to express an opinion about its market value is a preliminary question of fact for the judge. In deciding this question, the judge must act within the scope of a sound judicial discretion. His decision will be reversed where plainly erroneous, as in the case of a plainly incorrect decision about the qualifications of an expert witness. See Muskeget Island Club v. Nantucket, 185 Mass. 303, 304-306, 70 N.E. 61; Old Silver Beach Corp. v. Inhabitants of Falmouth, 266 Mass. 224, 226, 165 N.E. 1. Cf. Commonwealth v. Spencer, 212 Mass. 438, 448, 99 N.E. 266.

Here the petitioner had lived in Leicester (not far from Sturbridge) for 48 years; he had owned the property from 1937 on; his father had owned it from 1918 to 1926; he 'was acquainted with the property more or less for all his life'; he had made plans and surveys for its development, and had investigated in 1939, 1949, 1950, and 1952 the cost of repairing the breach in the dam and of clearing and improving the property; and he had visited another development using land adjoining a pond for a purpose similar to that for which he thought his own land was adapted.

We do not interpret the action of the judge in striking out the petitioner's testimony on market value as based on the ground that the petitioner's knowledge of the property was inadequate. He appears to have done this because he felt that the petitioner's opinion (about the market value of the property taken and the depreciation in market value of the remaining property) was too dependent upon unexecuted plans for future development of the property. Indeed much testimony, which the petitioner was not permitted to introduce, or which was struck from the record, was in form descriptive of a particular project for development of the land for camp sites on which at most a partial survey had been made prior to the taking. Evidence about the detials of this particular unexecuted project, as such (as distinguished from evidence about the contribution to the then existing market value caused by the possibility of using the property in connection with a restored pond), was not admissible. See Greenspan v. County of Norfolk, 264 Mass. 9, 12-13, 161 N.E. 894; Tigar v. Mystic River Bridge Authority, 329 Mass. 514, 518-519, 109 N.E.2d 148. Insufficient progress had been made to warrant admission of evidence about the particular project to prove the status of a partly executed development contributing to market value. See discussion in Brush...