Whitney v. Com.
| Decision Date | 01 March 1906 |
| Citation | 77 N.E. 516,190 Mass. 531 |
| Parties | WHITNEY et al. v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles F. Jenney and Sumner Robinson, for petitioners.
Robert G. Dodge And Andrew Marshall, for the Commonwealth.
This is a petition for an assessment of damages growing out of a taking of land in Winchester by the metropolitan park commissioners in 1898, under the authority of St. 1894, p. 283, c. 288, and St. 1895, p. 504, c. 450. The first question is whether the petitioners are entitled to a substantial sum or only to nominal damages. In the original taking a strip of the petitioners' land seven feet wide on the northerly side of Walnut street, was included, and this gave the petitioners a vested right to compensation for the land taken, and also for damages caused to their remaining land. But this right was subject to the right of the park commissioners, under the statute of 1895, p. 504, c. 450, § 2, to abandon any portion of the land taken, and to have this abandonment pleaded in reduction of damages for the taking, in any suit brought to recover therefor. The park commissioners subsequently abandoned this strip, and reconveyed it to the petitioners. In answer to a question submitted to them by the presiding justice, the jury found, under instructions, that the damage for the taking of this strip, in connection with the subsequent abandonment of it, was only nominal.
The whole of Walnut street, on which the petitioners' land abutted, was included in the taking, and there was a question, at the trial, whether the fee to the center of this street was owned by the petitioners, or whether they owned only to the northerly line of the street. This depends upon the construction of their deed, which we do not find it necessary to consider; for the jury, in answer to the special question submitted to them, found that the damage to the petitioners' property, including that to their remaining land, was the same, whether their boundary line was at the center of the street or at the side of it. If the petitioners are entitled to damages for the diminution in value of their remaining land, without reference to their ownership of the fee of the street, which was taken, it is of no consequence, under these findings, whether they had a title to the land in the street or not.
Since the decisions in Sheldon v. Boston & Albany Railroad Company, 172 Mass. 180, 51 N.E. 1078, and Hyde v. City of Fall River, 75 N.E. 953, we consider it settled that one, whose land is damaged by a taking of other land for a public use under statutes like that now before us, may recover his damages, even though no part of his own land is taken. The language of St. 1894, p. 286, c. 288, § 5, which provides for damages for this taking, is substantially the same as that of St. 1890, p. 464, c. 428, § 5, under which the cases just cited were decided. The adjudication in McSweeney v. Commonwealth, 185 Mass. 371, 70 N.E. 429, is not inconsistent with this view. In that case no injury was done to the petitioner's land by the taking of other land and the appropriation of it to a public use. In the course of the work there was merely a digging up and obstruction of a drain in the land taken, which was there without legal right. The application of this rule makes it unnecessary to consider whether, if the rule were otherwise, the right to receive the damages to their remaining land, which resulted from the taking of the strip seven feet wide, would continue after the abandonment of that strip by the park commissioners. Upon the undisputed facts and the findings of the jury, the petitioners are entitled to recover substantial damages.
The petitioners made many requests for rulings, some of which were refused. The first eight requests were given in substance, and no exception was taken in regard to them. The exception to the failure to grant in terms the ninth and tenth requests is sufficiently answered by the fact that the judge explained the statutes, substantially in accordance with these requests.
The requests numbered from 11 to 15, inclusive, relate to the right of access from their land to the boulevard under the rules of the park commissioners, and the requests from No. 25 to No. 34, inclusive, relate to the rights of the petitioners under other rules of the park commissioners. In reference to all these requests it is to be noticed, first, that the only land of the petitioners which is shown to be so situated that it might suffer special and peculiar damages from the taking, and use of the land of others for a park, as distinguished from damages to the public generally, is the land used as a mill pond, adjacent to the park on the northerly side. In its present condition, and so long as it is devoted to its present use, the land is such that no one of these requests appears to be applicable. It is not shown that these rules and regulations have any bearing upon the subject of damages to land so used. It is only in reference to a possible use of another kind, after a change in the condition of the land by filling, that any of these matters become material. The judge gave correct general instructions in regard to these possible future conditions, and this was all that he could properly do. He was right in telling the jury that, if the land should be filled and divided into building lots, in separate ownership, between the boulevard and other parts of the pond, the owners would have a right of access from their lots to this boulevard, which is a public way. He was right in telling them that the rules and regulations were then valid and would be valid in the future only so far as they were reasonable, and that rules which were reasonable under certain conditions might not be reasonable under defferent conditions.
We are of opinion that the petitioners are not aggrieved by the failure of the judge to instruct more fully as to the rules and regulations, in their application to the petitioners' land in its present condition. We also think that he could not profitably give more definite instructions as to the rules as applied to future unknown possible conditions. Whether a rule is reasonable and binding, as applied to known facts, is a question of law, but where facts are in dispute or uncertain, such a question must be decided by a jury, under proper instructions. In this case the facts and circumstances bearing upon the reasonableness of many of these rules, in their application to this park at the time of the trial, are not disclosed by the record, in such a way as to show any error of the judge in refusing to rule as matter of law upon the effect of the rules. Much less could he properly rule as matter of law what rules would be reasonable and what unreasonable in the future, when a part of the petitioners' mill pond may be made into building lots, and other conditions may be greatly changed. Upon the meager evidence on this subject which appears in the record, the judge was not called upon to rule more particularly upon these regulations.
The exception to the refusal to give the rulings requested, numbered 19, 20, 22 and 23, must be overruled. The general instructions given, and the submission of questions to the jury, together with the answers thereto, saved all the rights of the petitioners.
The judge, with the consent of counsel, submitted to the jury four questions to be answered. Two of them called for their assessment of damages for the taking, in connection with the subsequent abandonment, of the strip seven feet wide--the...
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