Wenton v. Com.
| Decision Date | 30 November 1956 |
| Citation | 335 Mass. 78,138 N.E.2d 609 |
| Parties | Walter J. WENTON and another v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Willard I. Shattuck, Jr., Fitchburg, for petitioner.
George Fingold, Atty. Gen., and Vincent J. Celia, Asst. Atty. Gen., for the Commonwealth.
Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.
This is a petition to assess damages alleged to have resulted to the petitioners' land in Fitchburg from the laying out on July 14, 1953, of Route 2, a State highway, as a limited access highway.
The Commonwealth excepted to the denial of its motion to direct a verdict, to the giving and the denial of certain requests for instructions, and to the admission of and refusal to strike evidence.
Prior to a taking for State highway purposes in 1946 the petitioners owned about 9 acres of land. The 1946 taking left them with about 8.02 acres abutting on Route 2. The 1953 layout cut off any rights of access to the State highway along an extensive frontage.
General Laws (Ter.Ed.) c. 81, § 7C, inserted by St.1943, c. 397, and as amended by St.1949, c. 583, and St.1950, c. 829, after authorizing the laying out of limited access ways provides, 'If a limited access way is laid out in whole or in part in the location of an existing public way, the owners of land abutting upon such existing public way shall be entitled to recover damages under chapter seventy-nine for the taking of or injury to their easements of access to such public way.'
The Commonwealth contended as ground for its motion and its requests for instructions which were not given that there was no easement of access appurtenant to the petitioners' land in 1953 because G.L. (Ter.Ed.) c. 81, § 21, as amended, provides that 'No state highway shall be dug up, nor opening made therein for any purpose * * * without the written permit of the department, and then only in accordance with its regulations * * *' and that the peitioners had obtained no such permit after the 1946 taking. There is nothing in this.
The petitioners from 1946 to July 14, 1953, had at least a right of formal access by way of driveway or driveways from their land to the State highway at such point or points as the department of public works might reasonably fix. The power to regulate the digging and opening of the State highway, if relevant, did not include the power to bar access entirely. Gleason v. Metropolitan District Commission, 270 Mass. 377, 381, 170 N.E. 395; Anzalone v. Metropolitan District Commission, 257 Mass. 32, 36, 153 N.E. 325, 47 A.L.R. 897; Valentino v. Commonwealth, 329 Mass. 367, 368, 108 N.E.2d 556.
The deed given by the petitioners in 1946 confirmatory of the taking did not purport to release the right of access. It was not necessary to reserve an easement of access over the land granted to the Commonwealth as a part of the highway location. 'Access to a public way is one of the incidents of ownership of land bounding thereon, and this right is appurtenant to the land * * *.' Anzalone v. Metropolitan District Commission, 257 Mass. 32, 36, 153 N.E. 325, 327.
The petitioners were entitled to recover the damage to what remained of their real estate after the appurtenant easement had been taken away from it and as a result of losing the easement. G.L.(Ter.Ed.) c. 79, § 12; Nichols v. Commonwealth, 331 Mass. 581, 121 N.E.2d 56. Nothing turns on the fact that the petitioners' acreage was the same as before the taking. See United States Gypsum Co. v. Mystic River Bridge Authority, 329 Mass. 130, 134, compare idem at page 140, 106 N.E.2d 677, at page 683.
The motion for a directed verdict was properly denied.
One Maki, called by the petitioners, testified without objection to the sale in 1953 of five acres of land from an eleven-acre tract. On cross-examination he testified to the subsequent sale of the other land in the tract. Thereafter the judge on the offer of the petitioners allowed in evidence the 1953 sale contract in which Maki contracted to convey both the parcels referred to. The admission of this agreement was within the judge's discretion.
Before evidence of either sale was received, Maki was allowed to testify that the assessed value of the 11-acre tract in 1953 was $250. This was inadmissible as evidence of value and should have been excluded. Johnson v. City of Lowell, 240 Mass. 546, 550, 134 N.E. 627. The use of the assessed value of the subject parcel as evidence of its value is solely dependent on the statute. G.L.(Ter.Ed.) c. 79, § 35.
We consider together the respondent's exceptions to the admission of evidence in respect of a lease of other land on Route 2 to Socony Vacuum Oil Company admitted in evidence over the respondent's objection, and to instructions given as to the possible use of the petitioners' land for the sale of gasoline. It was uncontroverted that the petitioners had no license for the keeping or sale of gasoline. The judge instructed the jury in substance that the petitioners had a right to the highest and best use of their land, that is, the most sensible and reasonable use, one which must be demonstrated to the jury 'as a reasonable, likely-to-be, probable use of the premises,' and that although the subject land lay in an industrial area under the local zoning law and could be put to any "legal' use,' unless there was such a permit the sale of gasoline would not be a legal business, but if a permit were obtained such business would be legal under the zoning law.
The judge also charged in substance that the petitioners could recover to...
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