Wine v. Commonwealth

Decision Date14 November 1938
Citation17 N.E.2d 545,301 Mass. 451
PartiesSOLOMON WINE v. COMMONWEALTH.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

February 9, 1938.

Present: DONAHUE LUMMUS, QUA, & DOLAN, JJ.

Eminent Domain Right to damages. Limitations, Statute of. Way, Public specific repairs. Release. Damages, For property taken or damaged under statutory authority.

The phrase in G. L (Ter. Ed.) c. 79, Section 9, "the work which caused the injury," means the particular portion of the work on a public improvement which caused the injury.

Under G. L. (Ter. Ed.) c. 79, Section 9, a landowner's right to damages for injury from a reconstruction of an abutting highway as part of a public improvement vested immediately upon the completion of the reconstruction, although the whole improvement was not then completed; and a petition to enforce such right, brought after a year from the date when the reconstruction was completed although within one year after the completion of the entire improvement, was barred.

A landowner, who, after the completion of a certain part of a public improvement which had caused him injury, suffered further injury from being temporarily deprived of all access to the municipal highway system in connection with later work on the improvement, was entitled to have his damages for the later injury assessed under G. L. (Ter. Ed.) c. 79,

Section 9, upon a petition filed within a year after the completion of that later work although his right to damages for the earlier injury had become barred.

A release, given in November, 1934, by a landowner who had suffered damage from a reconstruction of an abutting highway in that year, of all claims which he then had or might thereafter have arising from the "alteration and construction/reconstruction" of the highway "during the year 1934," did not apply to a claim for damages which resulted from being deprived for several months beginning in March, 1935, of all access to the municipal highway system during further operations in completing the same public improvement of which the highway reconstruction was a part.

The temporary closing of all ways giving access to certain land from the municipal highway system during the carrying out of a public improvement pursuant to formal orders of a board of public officers caused special and peculiar injury to the landowner, and he had a right to damages under

G. L. (Ter.

Ed.) c. 79, Section 9, measured by the diminution of the value of his land in reference to the use for which it was adapted.

PETITION, filed in the Superior Court on April 30, 1936. A verdict for the respondent was ordered by Brown, J.

The petitioner alleged exceptions. E. W. Hadley, for the petitioner.

A. V. Sullivan, Assistant Attorney General, for the Commonwealth, submitted a brief.

DOLAN, J. This is a petition for assessment and award of damages under G. L (Ter. Ed.) c. 79. The case was tried to a jury and at the close of the petitioner's evidence the judge allowed the respondent's motion for a directed verdict in its favor.

The jury would have been warranted in finding the following facts: In 1934, the petitioner was the owner of a parcel of land on the easterly side of North Shore Road, in Revere, between Revere Street and the railroad overpass at the Point of Pines. He operated a gasoline filling station on the premises. When he purchased the property in 1925, North Shore Road was in good condition and heavily travelled. This condition continued until the early part of 1934, when the respondent, acting by its department of public works and under authority of St. 1932, c. 241, as amended by St. 1933, c. 349, proceeded to construct a new bridge with approaches thereto over the Saugus River between the Point of Pines, in the city of Revere, and the city of Lynn, with necessary drainage outlets, and to make alterations in connecting ways. North Shore Road, Revere, between Revere Street and the railroad overpass at the Point of Pines, is bordered westerly by a marsh and easterly by an enclosed railroad right of way, and "between the two named termini ingress to that portion of North Shore Road" and the abutting property can be had only by a "dirt street" known as Oak Island Street, which "bridges over the railroad easterly" and leads to Revere Beach Boulevard. Early in the year 1934, the respondent began work upon the reconstruction of North Shore Road. It was closed entirely and a new road built with a long "island" down the center, so that thereafter traffic bound southerly on the road could not cross to the petitioner's premises without going a long way beyond. This particular work was completed and the road reopened about four months prior to March, 1935. The "rebuilding of the road" left the petitioner's land "below grade."

On November 10, 1934, the petitioner executed a release, wherein it was recited that in consideration of the sum of "Four hundred dollars . . . and other valuable considerations" paid to him by the Commonwealth, the receipt whereof was acknowledged, he "remise[d], release[d] and forever discharge[d] the said Commonwealth . . . its successors and assigns, its officers, employees, servants and agents, of and from all actions, causes of action, suits, and all claims . . . of every form or nature," which he then had or might thereafter have, "for or by reason of the laying out/alteration and construction/reconstruction during the year 1934 of the State highway adjoining . . . [his] property on North Shore Road in the . . . city of Revere, and any change of grade of said highway, and/or any extension of slopes and alterations in the buildings, structures, drainage, driveways or entrances on said property . . . ." The petitioner testified that he "does not read English well enough to understand the paper, told this to the representative of the Commonwealth who brought him the paper, did not read the paper, and stated that he would only receipt for the money paid to him without surrendering further rights, and that the representative of the Commonwealth stated that was all there was to the paper and thereby induced the . . . [petitioner] to sign it." On cross-examination he "acknowledged that he was a voter; that at the time he qualified as a voter he had read part of the Constitution of the United States."

About March 1, 1935, the respondent "again entirely closed" the road by "blockading it and tearing out the railroad over-pass" north of the petitioner's premises, and by barricading the road at Revere Street, south of the petitioner's premises, and by barricading the entrance between these two points from Oak Island Street, thus shutting off access to the premises from the general system of public highways of the city. This condition continued until July 3, 1935. In the intervening period the railroad overpass, at which point North Shore Road and the Revere Beach Boulevard convene, just south of the new General Edwards bridge, was completed. During the two periods when that portion of North Shore Road upon which his premises abut was closed to travel, the petitioner did no business on his property, and was obliged to close his filling station. After the expiration of the last period referred to, he rented his filling station for two months at $50 a month, but the tenant then vacated the premises "because very little business came in." The petitioner has tried since to rent the premises, "but when people see the `island' down the center of the road they decline to deal." During the two years prior to the rebuilding of the road his average gross income from the premises was about $500 a week, but "now he cannot get $50 per month." Prior to the rebuilding of the road the fair market value of his property was about $7,000. When the "rebuilding and closings were all over the fair market value of the property was $500." The respondent's answer admits some, and denies others, of the petitioner's allegations and pleads that "the petition was not brought within the time limit set by statute."

It is unnecessary to consider at this point whether the evidence relating to the issue of fraud in connection with the execution of the release was sufficient to require its submission to the jury, as we are of opinion that any possible right of the petitioner to recover for damage sustained by him in the reconstruction of the road in front of his premises in 1934 was barred at the bringing of the petition by the passage of the statutory period in which such a proceeding could be begun.

St. 1918, c.

257, Section 187 inserting in the Revised Laws c. 48A (now G. L. [Ter. Ed.] c. 79), was enacted in pursuance of reports of the commissioners to consolidate and arrange the General Laws. By Section 46 of c. 48A, all acts and parts of acts inconsistent therewith were repealed. Section 9 of G. L. (Ter. Ed.) c. 79 governs those cases where injury has been caused to the real estate of one "in accordance with a formal vote or order of the board of officers of a body politic or corporate duly authorized by law," but without a taking. It provides that "the right to damages shall not vest . . . until the work which caused the injury has been completed." The announced purpose of the commissioners in framing the statute is of value in determining its meaning. See Walker v. Medford, 272 Mass. 161 ,...

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3 cases
  • Hertrais v. Moore
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 30, 1949
    ...It is of value to examine the Report of Commissioners Appointed to Revise the General Statutes (1834). See Wine v. Commonwealth, 301 Mass. 451, 455, 17 N.E.2d 545, 120 A.L.R. 889. Part II of the report contains the following (page 26): ‘The clause as to implied revocations, recognizes and a......
  • Wine v. Commonwealth
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 16, 1938
  • Hertrais v. Moore
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 30, 1949
    ... ... 1783, c. 24, Section 2. It is of value to examine the report ... of commissioners appointed to revise the general statutes ... (1834). See Wine v. Commonwealth, 301 Mass. 451 , ... 455. Part II of the report contains the following (page 26): ... "The clause as to implied revocations, ... ...

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