Zambarano v. Massachusetts Turnpike Authority

• Decision Date: 01 April 1966
• Citation: 215 N.E.2d 652,350 Mass. 485
• Parties: Louis G. ZAMBARANO et al. v. MASSACHUSETTS TURNPIKE AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 652

215 N.E.2d 652

350 Mass. 485

Louis G. ZAMBARANO et al. v. MASSACHUSETTS TURNPIKE AUTHORITY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 9, 1966.

Decided April 1, 1966.

John F. O'Donnell, East Milton, for respondent.

Edward J. Davis, Boston, for petitioners.

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL, and REARDON, JJ.

WILKINS, Chief Justice.

The petitioners, husband and wife, were the owners of land and a building at 84 Huntington Avenue, Boston, which on August 13, 1962, were taken by the respondent Authority for a turnpike extension. This petition for damages was tried to a jury who found for the petitioners in the sum of $66,216. The respondent's exceptions are to the judge's allowing a witness to testify to the sales price in October, 1963, of neighboring properties; to excluding an expert witness of the respondent from the court room during the testimony of another expert of the respondent; and to the denial of a motion for a mistrial.

The property was a six-story building of brownstone block serving as a home for the petitioners and as a guest house. It was on the eastern side of the street opposite the 'Prudential complex,' which was in the course of construction at the date of the taking.

1. One Brown, called as a witness by the petitioners, testified that he was the owner of four physically similar parcels at 116, 118, 120 and 122 Huntington Avenue; and that the sales price of the four properties when he sold them to one buyer in October, 1963, was approximately their value on August 13, 1962. Subject to the respondent's exception, he was permitted to testify that the sales price of the four properties in October, 1963, was $250,000 or an average of $62,500 for each lot. The respondent's ground of objection is that this sale, which was admitted as comparable, took place fifteen months after the taking. It argues that in a land damage case on owner may not benefit from any enhancement in value which is the result of the taking; and that a sales price which reflects such an enhancement of value should not be admitted in evidence. The weakness in this argument is that it assumes that there was an enhancement in value due to the taking for the turnpike extension. There is nothing in the record to support this assertion, and for this reason the present case does not fall within the principles referred to in Cole v. Boston Edison Co., 338 Mass. 661, 669--670, 157 N.E.2d 209. There surely was no abuse of the trial judge's discretion in admitting the evidence. Roberts v. Boston, 149 Mass. 346, 350, 354, 21 N.E. 668, and cases cited; Iris v. Hingham, 303 Mass. 401, 408--409, 22 N.E.2d 131; H. E. FLETCHER CO. V. COMMONWEALTH, MASS., 214 N.E.2D 721.^A Anno. 118 A.L.R. 869, 887--890; 85 A.L.R.2d 110, 152--157; Orgel, Valuation Under Eminent Domain (2d ed.) § 139, p. 591.

2. At a bench conference, in the absence of the jury, the respondent's counsel stated that he would present two expert witnesses on value, one Kiley and one Foster in that order. Counsel for the petitioners asked that Foster be excluded from the court room during the testimony of Kiley. Counsel for the respondent objected on the grounds that it had the right 'to have (each one of) its expert witnesses present in Court' when either one of them was testifying, and that it was 'not within the discretion of the Court to sequester them.' The trial judge ordered...