Tigar v. Mystic River Bridge Authority

• Decision Date: 01 December 1952
• Citation: 109 N.E.2d 148,329 Mass. 514
• Parties: TIGAR v. MYSTIC RIVER BRIDGE AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 148

109 N.E.2d 148

329 Mass. 514

TIGAR v. MYSTIC RIVER BRIDGE AUTHORITY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 8, 1952.

Decided Dec. 1, 1952.

Sidney G. Brown, Chelsea, for petitioner.

Arthur V. Sullivan, Boston, for respondent.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

WILKINS, Justice.

This is a petition for the assessment of damages under G.L. (Ter.Ed.) c. 79, for the taking of land ¹ of the petitioner at 48-50 Second Street, Chelsea. The respondent made the taking for the construction of the bridge authorized by St. 1946, c. 562. The judge found for the petitioner in the amount of $8,900 with interest. The respondent's exceptions are to the admission in evidence of certain testimony of one Breen, who was called as a witness by the petitioner and qualified as a real estate expert.

The parcel taken was at the corner of Poplar Street had a frontage on Second Street, and contained about two thousand square feet. One side bounded on a fivefoot passageway leading into Second Street. The passageway was for the use of occupants of this parcel in common with others on Poplar Street and also of the petitioner as owner of two other parcels at the corner of Second and Walnut Streets, which were numbered 43, 45, and 47 Walnut Street and in the rear bounded on the passageway. No part of the Walnut Street parcels was taken, but damages were sought as to them. On the parcel at 48-50 Second Street at the time of the taking there was a vacant three-story brick building, nearly all the windows of which had been bricked in by the petitioner, who had caused the partitions and other portions of the interior to be removed. Some work also had been done on the roof of the building at the corner of Walnut Street.

The petitioner's husband testified that he was the treasurer and general manager of Tigar Refrigeration Company of which the petitioner was president, and that the various parcels had been acquired for the purpose of being developed as a single unit for use by that company. One building on Walnut Street was to be remodeled as an administration building and as a show room for its business of commercial refrigeration, and the property at 48-50 Second Street was to be remodeled as a freezer building, the two to be connected by a bridge over the passageway. Some time after 1946, as a result of a conversation in which the chairman of the respondent advised him to do no more work because the property might be taken, the petitioner's husband caused work to be stopped.

The assessed values for the three years prior to the taking were: 48-50 Second Street $3,500; and 43-47 Walnut Street $8,000. The parcels were purchased at three different times.

The only other evidence of value or damage introduced by the petitioner was the testimony of the witness Breen. Because of a dispute as to its meaning, it must be stated in detail. The witness, after referring generally to the petitioner's scheme to develop the property for a particular use by the refrigeration company, testified: 'The premises, according to the plans which I saw, and having in mind the condition of the property as I viewed it, were in the process of being converted to the uses of a concern which catered to persons who needed deep-freeze equipment and who had occasion to require storage of deep-frozen products. As a test of the value of the property before the taking, in order to arrive at an opinion, I estimated the value that it would have when the work which was then in progress was completed, in order to arrive at a figure which buyers and sellers would have in mind in considering the purchase.' Counsel for the respondent asked the witness to repeat his last statement, and the latter continued: 'As a test of the value of the property before the taking, I estimated that the value which the property would have when it was completed in accordance with the plans and specifications that were brought to my attention, and I deducted the owner's estimate of the cost of the work which remained to be done as of the time of the taking. This figure----' Counsel for the respondent objected 'if you're going to give the figure.' The judge, subject to the respondent's exception, said, 'I'll allow it.' The witness continued: 'I considered that this figure would be the figure that would be in the minds of buyers and sellers that would be considering the purchase and sale of the property as it stood at the time of the taking. Following out this test, I measured the area of the structures at 48 to 54 Second Street and 45 to 47 Walnut Street, and found an area of about 12,600 square feet. I gave consideration to the probable reproduction cost, or the cost of building a structure with 12,600 square feet for these purposes about the time of the taking and I gave consideration to the depreciation factor from such a structure, and arrived at a agure that represented the depreciated reproduction cost of about that amount of space for that purpose, to which I added the land value of the site. If the remaining work that had to be done in connection with completing the freezing plant cost $20,000, on that computation I arrived at a value of the property as a whole before the taking of $22,500 by that test. I also considered what the rental value of the space would be and arrived at a figure of fifty cents a square foot, which would return eight per cent on the investment and five per cent for real estate taxes and four per cent for depreciation on an investment of $37,100 under this test. If the cost of the remaining work was $20,000, the value of the parcel as a whole before the taking by this test was $17,100. Taking into account these two tests, and with general reference to my experience and knowledge of the value of similar structures for similar purposes and other places and for the highest and best uses which in my opinion was its use for the purposes of a concern engaged in the sale of deep-freeze equipment and the storage of deep-freeze products, I came to the conclusion that the fair cash value of the property before the taking was $23,000. The measure of damage resulting in the severance of the Second Street property I estimate to be equivalent to the difference between $23,000 and $3,000, which in my judgment was the value of what remained after the severance of the Second Street parcel.'

The usual test is the fair market value of the property at the time of the taking. Maher v. Commonwealth, 291 Mass. 343, 348, 197 N.E. 78, G.L. (Ter.Ed.) c. 79, § 12. And the judge so stated in making a ruling not now material. Fair market value 'means the highest price which a hypothetical willing buyer would pay to a hypothetical willing seller in an assumed free and open market.' Epstein v. Boston Housing Authority, 317 Mass. 297, 299, 58 N.E.2d 135, 137. In ascertaining that value, the uses to which the property might probably be applied may be taken into consideration. Burt v. Wigglesworth, 117 Mass. 302, 306; Fosgate v. Hudson, 178 Mass. 225, 232, 59 N.E. 809. Or as was expressed in Smith v....