Benham v. Dunbar

103 Mass. 365

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1869
• Status: Published

Opinion

Colt, J.

Much must be left to the discretion of the judge who presides at the trial, in determining whether the lands, sales of which were admitted in evidence, were so similar in situation, and adaptation to profitable occupation, and the sales of them so recent, as to make such sales evidence proper to be submitted to the jury.

It certainly does not appear from the facts stated in these exceptions, that the lands upon other islands and headlands in Boston harbor were at such distances, or devoted to such dissimilar uses, or that the sales testified of were so remote in point of time, that the evidence became irrelevant or immaterial to the issue. It may be that there were no sales more recent to be shown. The rule must vary with the circumstances of each case. If the value of a town lot was in question, it is plain that the evidence should be confined to sales of comparatively recent date and of land in the near vicinity. If it was wild land, in a thinly settled part of the country, a more liberal rule would be applicable. Without some further evidence, we cannot suppose that the changes in the title to real estate in the islands and headlands of the harbor are so frequent, or the difference in situation and value so great, as to render the evidence here objected to inadmissible. Paine v. Boston, 4 Allen, 168. Boston & Worcester Railroad Co. v. Old Colony & Fall River Railroad Co. 3 Allen, 142. Exceptions overruled.