Trustees of Boston Univ. v. Commonwealth

• Decision Date: 02 April 1934
• Citation: 190 N.E. 29,286 Mass. 57
• Parties: TRUSTEES OF BOSTON UNIVERSITY v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 57

190 N.E. 29

TRUSTEES OF BOSTON UNIVERSITY

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

April 2, 1934.

Exceptions from Superior Court, Suffolk County; J. C. Donnelly, Judge.

Three petitions by the Trustees of Boston University against the Commonwealth for assessment of damages for takings of land. At the trial together in the superior court, there were verdicts for the petitioners in the sums of $375,045.60, $2,172.80, and $12,781.60 respectively, and respondent saves exceptions.

Exceptions overruled.

W. Flaherty, of Boston (H. M. Leen and C. G. Keene, both of Boston, with him), for petitioners.

D. A. Foley, Asst. Dist. Atty., of Boston, for the Commonwealth.

LUMMUS, Justice.

On November 11, 1926, under St. 1926, c. 365, the commonwealth took thirteen thousand, two hundred and four square feet of land belonging to the petitioner at the westerly corner of Chilmark street and Bay State road in Boston, together with ‘the area of thatch, flats and land under water appurtenant to said area’ in the Charles River Basin. Two successive smaller takings of flats only were made later, but these exceptions do not involve them. Three petitions, based on these takings, were tried together. For the first taking, the jury awarded the petitioner $375,045.60. The commonwealth alleged exceptions.

Besides the land taken, the petitioner owned a considerable tract of land west of Chilmark street, bounded southerly on Commonwealth avenue and northerly on the land taken; a large tract east of Chilmark street and extending easterly to Ashby street, bounded southerly on Commonwealth avenue and northerly on Bay State road, except that there was one house lot in other ownership until the petitioner acquired it on August 31, 1928; and a large tract east of Ashby street and extending easterly to Granby street, bounded southerly on Commonwealth avenue and northerly on Bay State road. Bay State road skirts the Charles River Basin. All these ways were public ways, and the fee in them, subject to the public easement, was in the petitioner so far as its land bordered on them. Before the taking, Bay State road had its western end at Chilmark street, and none of the ways named, except Commonwealth avenue, was much traveled. The improvement for which the land was taken made Bay State road a main thoroughfare.

The first exception is to a ruling upon evidence. A witness for the petitioner, testifying as an expert that the value of the entire property at the time of the first taking was $2,117,290, and $1,632,617 afterwards, stated, as one of a number of reasons for his opinion, that the commonwealth had taken a strip of land not used for Bay State road, between that road and remaining land of the petitioner, upon which a building might be erected, tending to shut off the light, air and view. There was no error in permitting the witness to state this as one of his reasons. Although the taking was for a parkway or boulevard, the erection of a building on this strip was a possibility for which no further damages could be later claimed. Furthermore,a sale of the strip to private persons was possible. G. L. c. 92, § 85.

The commonwealth excepted to the refusal of the judge to instruct the jury in effect that the diminished value of the land of the petitioner east of Chilmark street could not be considered in assessing damages for the taking of land west of Chilmark street. There was evidence that the entire property of the petitioner, at the time of the first taking, was adapted for use as the site of a university, for which purpose the jury could find it was held, and was not fit for that use afterwards. There was evidence that for that use, and for use for hospital buildings or apartment houses, for which the land of the petitioner east of Chilmark street was also adapted, the taking caused injury to that land.

In Wellington v. Boston & Maine Railroad, 164 Mass. 380-382, 41 N. E. 652, this court said, ‘Whether a particular lot of land constitutes an independent parcel is a question which cannot be determined in the affirmative by the mere fact that it is separated from other land by a highway or street, or by paper lines, or by fences; nor can it be determined in the negative by the mere fact that it is all in one ownership, and is not divided by streets or by paper lines.’ In that case, however, the absence of evidence that all the land was ‘used together, or held for sale as one parcel,’ caused this court to hold that each division was a separate and distinct parcel. In Lincoln v. Commonwealth, 164 Mass. 368, 379, 41 N. E. 489, 492, this court said, ‘No doubt, there are many cases in which the court is able to see, from the way in which they are divided and used, that different parcels of land, even if they adjoin one another, are to be regarded as distinct. * * * But the question is a practical one, and the mere intervention vention of a way legally established, but not visible on the surface of the ground, is not conclusive. If, as here, the whole estate was practically one, the plaintiff is entitled to have the damage to the whole of it considered. As was said by Dixon, C. J. [Welch v. Milwaukee & St. P. Ry. Co., 27 Wis. 108, 112], we are to look at the land, and not at the map, to ascertain the plaintiff's damages.’ The former case arose under a statute (Pub. St. 1882, c. 112, § 95) providing for the payment of ‘all damages occasioned by laying out, making and maintaining its road, or by taking land or materials therefor’; and the latter case arose under St. 1889, c. 439, § 4, which gave ‘all damages that shall be sustained * * * by reason of such taking.’ At that time there was a tendency, shown in the latter case, to hold that such language gives no right to damages unless some land of the petitioner is taken. As to this, compare the later cases of Hyde v. Fall River, 189 Mass. 439, 75 N. E. 953,2 L. R. A. (N. S.) 269, and Howell v. New York, New Haven & Hartford Railroad, 221 Mass, 169, 108 N. E. 934, L. R. A. 1917C, 1131. The Wellington and Lincoln Cases show that land divided by public ways may be deemed a unit, but they do...