Valentino v. Com.

• Decision Date: 03 November 1952
• Citation: 108 N.E.2d 556,329 Mass. 367
• Parties: VALENTINO et al. v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 556

108 N.E.2d 556

329 Mass. 367

VALENTINO et al. v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 22, 1952.

Decided Nov. 3, 1952.

Nunziato Fusaro, Worcester, for petitioners.

Francis E. Kelly, Atty. Gen., W. S. Kinney, Ass't Atty. Gen., for Commonwealth.

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

RONAN, Justice.

The Commonwealth on April 10, 1946, took a strip of land, about 220 feet long and varying in width from six feet to nine feet, of the petitioners' lot of land upon which were located a dwelling and a gasoline filling station.The filling station, a wooden structure twenty years old, rested on a cement foundation.It was twelve feet wide and thirteen feet deep.It was covered by a four sided roof, and a wooden canopy extended from the front roof toward the street and over two gasoline pumps set in a cement base.The taking came close to the outer edge of this cement base.There was evidence that before the taking automobiles refueled by driving up to either the station side or the street side of the gasoline pumps.Since the taking they have continued to secure a supply of gasoline in the same way.The only difference is that now an automobile on the street side of the pumps rests upon a part of the highway while receiving gasoline, while prior to the taking it rested upon land of the petitioners.There was evidence upon the part of the petitioners that it is desirable to move back the filling station from the street and that this work would cost $1,100.The judge, subject to the exception of the petitioners, instructed the jury that, if no part of the canopy or base of the pumps was taken, they should not consider as an element of damages the estimated expense of moving back the gasoline station.

The judge correctly instructed the jury that the petitioners were entitled to recover the difference in the market value of their land before and after the taking.This was in accordance with the statute, G.L. (Ter.Ed.)c. 79 § 12, which provides that 'in case only part of a parcel of land is taken there shall be included damages for all injury to the part not taken caused by the taking or by the public improvement for which the taking is made'.This general rule for the determination of land damages is well established in this Commonwealth.Edmands v. City of Boston, 108 Mass. 535.Wright v. Commonwealth, 286 Mass. 371, 190 N.E. 593.Goodyear Park Co. v. City of Holyoke, 298 Mass. 510, 11 N.E.2d 439.Barnes v. Commonwealth, 305 Mass. 339, 25 N.E.2d 737, 127 A.L.R. 104.United States Gypsum Co. v. Maystic River Bridge Authority, 329 Mass. ----, 106 N.E.2d 677.

The question is whether, in applying this rule of damages, the jury should have been allowed to consider the cost of the proposed removal of the filling station.Access to and egress from the filling station remain open and available.Indeed, the only difference is that the highway has been brought nearer to the station.The petitioners could not be and have not been cut off from their right of entering the way or going from the way to their land.Anzalone v. Metropolitan District Commission, 257 Mass. 32, 36, 153 N.E. 325, 47 A.L.R. 897.Gleason v. Metropolitan District Commission, 270 Mass. 377, 380, 381, 170 N.E. 395.Gustat v. City of Everett, 278 Mass. 1, 3, 179 N.E. 217.¹

The petitioners contend that the locus outside the pumps has now become a part of the highway; that the use of it for the purpose of selling gasoline from the pumps to automobiles beside the pumps constitutes a public nuisance; and that they will be compelled to refrain from conducting their business in this manner.The record does not support these fears of the petitioners.The monthly rent from the filling station has continued at an average of $60, which was the rate before the taking.It is based on one cent on each gallon of gasoline sold.Nothing that the Commonwealth has done in widening the way has caused any decrease in the rent, and nothing that the operator of the filling station has done in conducting the business since the taking on April 10, 1946, has been shown to have increased traffic hazards.There...