Taft v. Com.

• Decision Date: 03 April 1893
• Parties: TAFT v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 526

33 N.E. 1046

TAFT v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

April 3, 1893

Two petitions by Orray A. Taft against the commonwealth, tried together, for the assessment by a jury of damages, under the provisions of St.1889, c. 439,--the first No. 4,294, for the taking by the board of metropolitan sewerage commissioners, in behalf of the commonwealth, of a triangular parcel of land at Point Shirley, in Winthrop belonging to the petitioner, and containing about 12,450 square feet of upland and 9,000 feet of beach, for the purpose, expressed in the instrument of taking, "of using the same for the construction, maintenance, and operation of an underground sewer or sewers, syphons, gate chambers, and necessary appurtenances," (this was recorded with Suffolk deeds, April 30, 1890;) the second, No 4,295, for the taking, by said board, under said act, as amended by St.1890, c. 270, of "the right to construct operate, and forever maintain an underground main sewer, and connecting sewers, drains, manholes, and underground appurtenances," in a strip of land 1,000 feet long and 33 feet wide, which the petitioner claimed was a private way, forming part of the parcel of land owned by him, and which the respondent claimed was a part of the public highway in Winthrop, called Shirley street, (the latter taking was recorded May 9, 1890.) The jury found for the petitioner in the first case for $12,088.40, and in the second case for $10,145.26. The commonwealth excepts. Exception sustained.

The construction of the main sewer was begun in May, 1890, and continued in the way through the petitioner's premises until the following October. At the time of the trial the main sewer had been constructed, but no gate chamber, syphon, or other works incidental to the crossing of Shirley gut had been built. The jury took a view. The petitioner had owned since 1853, and controlled since 1848, a parcel of land containing about 12 acres, bounded on all sides but one by the salt water, and the extreme end being the northerly shore of Shirley gut, with Deer island on the other side. This land was flat and even, with sandy soil, with no trees, fences, or buildings upon it, except the buildings used by the petitioner as an hotel, with its yard, stables, and outbuildings. At the time of the takings above mentioned there was a way, without fences at the sides, which extended from a point on what was conceded by both parties to be Shirley street, through land of one Hale, formerly of the Revere Copper Company, and thence in a straight line through the petitioner's land to his hotel, the corner of which was within about 225 feet of the high-water mark at Shirley gut; and the respondent claimed that the way extended in the same direction beyond the hotel to the water, but this was denied by the petitioner. This way was built and maintained by the petitioner at his own expense, and there was no evidence that it was built beyond the hotel. The superintendent of streets of Winthrop testified that in 1885 he, as superintendent, made some slight repairs "on the way on Taft's land;" "filled up some holes and raked the stone off." This was the only evidence of any work done by the town upon the way across Taft's land. This way, if it had been extended beyond the hotel, would form the westerly boundary of the triangular parcel above mentioned, the northeasterly boundary line of said triangle beginning 143 feet back from high water on said way, and the southerly boundary being said Shirley gut. The following is a plan showing the petitioner's land, a part of Shirley street, and the way in controversy:

(Image Omitted)

The judge instructed the jury, among other things, as follows: "You have also the right to take into account the purpose for which it was taken. The taking of this triangle for a public park might possibly be considered by you to be a benefit to the adjoining land; and nothing is more common than for an assessment of betterments to be made, where parks are constructed, upon land adjoining, on account of benefit caused by the park. Another use might seem to you to be objectionable, and it is claimed by the petitioner that the use to which the property is put is of itself a detriment to the market value of the remaining land. You are therefore to see what the use is. I instruct you that, in so far as that sewer comes nearer to the remaining property by reason of the taking of the triangle, you have a right to consider the detriment which it will be to the market value of the remaining property. You have no right to assume that a nuisance is to exist there, except so far as it is a necessary consequence of the sewer. You are to assume that the sewer will be properly taken care of. The existence of the sewer is authorized by the legislature, but it means a sewer properly taken care of. You are not to assume the existence of any negligence on the part of those who take care of it, but what is the reasonably necessary consequence to the adjoining land by the taking of that land for the purpose for which it was taken. It is claimed by the petitioner that, by reason of the tides, a nuisance may be created there. I instruct you that if nuisances are created by the tide it is the duty of those who have charge of the sewer to abate the nuisance, and you are not to take that into consideration unless you find that nuisances must necessarily be created, and by the proper operation of the sewer. Even if they are created, it is not the right of the public to create a nuisance. A nuisance may be abated. I mean you are to take into consideration only such objectionable things as arise from a proper use of the sewer. I instruct you that whatever works hereafter may fairly be deemed to be important, reasonably necessary, or reasonable in the operation of that sewer, which ought to be erected, or could be erected, upon this land if needed, are to be taken by you into consideration. That is the purpose for which the land is taken. Not only the changes, the physical changes which have taken place there, but what physical changes are you satisfied upon the evidence it may be reasonably apprehended will take place there in the construction of this sewer? If you find that, by reason of the taking of this land, the market value of the remaining land of the petitioner is lowered by reason of the fact that the sewer is nearer this land than it would otherwise be, by reason of the taking of this triangle, that you may take into consideration. In a word, gentlemen, seeing the fair market value of that strip of land, if you find that the remaining property has been benefited by the taking of the triangle, then subtract from the value of the triangle the benefit; if you find it has been damaged, add the damage to the remaining land to the value of the triangle, and that will be the damages caused by reason of taking the triangle."

COUNSEL

C.S. Lincoln and S.J. Elder, for petitioner.

W.D. Turner, for respondent.

OPINION

HOLMES, J.

These are two petitions for the determination of damages under the metropolitan sewerage act, (St.1889, c. 439, § 4.) The first is for a triangular piece of land on Point Shirley at Shirley gut, taken in fee simple for a sewer, etc. The other is for an easement of building and maintaining a sewer under a long strip of adjoining land, alleged by the defendant to be a public way. The petitions were tried together, and the case is here on exceptions.

The first exceptions were to allowing certain experts to testify how the taking of a part of the petitioner's land for a sewer affected the value of the rest. The only ground stated for the objection in the first two instances, and seemingly the only one in the last, although that is not quite so clear, was that the witness was not qualified to state his opinion. We see no reason for revising the action of the presiding judge on this ground. It was said that the witnesses were not experts on the effects of sewers. But they had been admitted as experts on values, and had testified on the general question, without objection. We cannot say that it was wrong to allow any proper questions of detail. Experts may be asked the effect of a taking. Brainard v. Railroad Co., 12 Gray, 407; Dickenson v. Fitchburg, 13 Gray, 546, 557; Chandler v. Jamaica Pond Aqueduct Corp., 125 Mass. 544, 552, 553; Vandine v. Burpee, 13 Metc. (Mass.) 288.

The next question with which we have to deal is more difficult. Whatever may have been the implied ground of the objection to the foregoing evidence, in one instance it was general in point of form. Later, the respondent asked for an instruction that the petitioner could not recover additional damages for any use which might be made of the land taken, other than erecting buildings thereon; also, that the jury could not consider the probability of smells, noise, or smoke as enhancing damages, even if not so offensive as to create a nuisance. These instructions were refused, and the respondent excepted. The testimony of the experts enhanced the damage to the petitioner's remaining land from the fact that the part taken was to be used as a sewer, on various grounds such as the possibility of a brick structure with pumping engines, (which there was no ground to anticipate on the evidence;) the possibility of a nuisance from an overflow at Shirley gut, (of which at most there was but a scintilla of evidence;) the interference with the street by necessary repairs; knowledge that the sewer was there, underground. The jury probably understood from the instructions they received that after having allowed the value of the land taken, and any harm to the remaining part in point of size, shape, etc., (Maynard v. Northampton, (Mass.) 31 N.E.Rep. 1062,) they had a...