Stone v. Com.
| Decision Date | 22 May 1902 |
| Citation | 63 N.E. 1074,181 Mass. 438 |
| Parties | STONE et al. v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Adams & Blinn, Gaston, Snow & Saltonstall, and Thomas Hunt, for petitioners.
Franklin T. Hammond, for respondent.
These are petitions for the assessment of damages for land taken under St. 1889, c. 439, and St. 1890, c. 270. The cases come here on exceptions taken by the Commonwealth.
1. The property taken is part of that shown on the plans in Stone & Stone, 179 Mass. 555, 564, 61 N.E. 268, and adjoins Malden Bridge. It consisted of land and flats used for a wharf and berth for vessels, and was bordered by a substantial sea wall. The first exception is to the admission of evidence of what this wall was worth by the running foot. If the presiding justice had thought the evidence uninstructive and had excluded it, as in Patch v. City of Boston, 146 Mass. 52, 56, 14 N.E. 770, we should have been slow to revise the exercise of his discretion, but so far as we can judge he was right in thinking that it might be of some assistance to the jury, as in Pierce v. City of Boston, 164 Mass 92, 97, 41 N.E. 227. He instructed the jury properly that market value was the thing ultimately to be arrived at. See Allen v. City of Boston, 137 Mass. 319, 321.
2. With regard to the depth of the water alongside the wharf, a witness was allowed to state that one Jotham Barry had told him that it would be safe to guarantee from eighteen to twenty feet of water there at flood tide. Barry had been lessee of the wharf from 1856 to 1882, and was dead. The evidence was let in under St. 1898, c. 535. It was excepted to, and is said to have been inadmissible because matter of opinion not fact, and because it referred to a time too long before the taking. But in view of Barry's relations to the wharf his statement fairly might be taken to import that he had found from eighteen to twenty feet at flood tide. In a matter like this, prophecy is only history inverted. We have no ground for saying that the statement referred to too remote a time.
3. On the question of damage to the remaining property not taken the respondent contended that a new berth for vessels could be made by dredging. The petitioners replied that they did not own the flats that would have to be dredged, and this was in controversy. 'As bearing upon the effect of the taking upon the remaining land,' the respondent offered in evidence the finding of a single justice of this court, more or less in favor of the petitioners' title, in the case of Stone v. Stone, 179 Mass. 555, 61 N.E. 268. The offer, it will be observed, was of a finding, not of a final decree, and of a finding in a case to which the respondent was not a party. Blower Co. v. Brown, 149 Mass. 421, 424, 21 N.E. 883; Barney v. Tourtellotte, 138 Mass. 106, 107; Davis v. Wood, 1 Wheat. 6, 4 L. Ed. 22; 2 Taylor, Ev. (9th Ed.) § 1682. In this court it is not contended that the decision was evidence of the fact found, but it is said that the fact of such a finding would affect the value of the remaining land. No doubt such an opinion with regard to the title would affect the value of land, but it is not the accepted mode of proving it.
4. As bearing upon the same question, an offer was made to prove that the lawyer who acted in Stone v. Stone for some of the present petitioners argued and tried to prove in that case that the flats last mentioned belonged to the petitioners. The exclusion of this evidence was proper. Wilkins v. Stidger, 22 Cal. 231, 238, 83 Am. Dec. 64; Elting v. Scott, 2 Johns. 157, 162. See Langd. Eq. Pl (2d Ed.) §§ 33, 34; Wood v. Graves, 144 Mass. 365, 11 N.E. 567, 59 Am. Rep. 95.
5. The...
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