Lincoln v. Commonwealth

41 N.E. 489, 164 Mass. 368, 1895 Mass. LEXIS 243

Opinion

Holmes, J.

This case brings before us once more the question of the rule of damages to be applied when land is taken and the purpose for which it is taken is such that adjoining land of the same owners is made less in value. The matter was discussed in the former decision of this case, but we will state our views once more in the hope of making them somewhat clearer.

When the Legislature authorizes something to be done in the neighborhood of a plaintiff’s land which diminishes its value, but which would not be actionable at common law if done by a neighboring owner, if the statute provides no compensation the plaintiff cannot claim any under the Constitution, because what is done does not amount to a taking. And even if the thing authorized would be actionable at common law and a nuisance but for the statute, still it is not necessarily a taking, and unless it does amount to that no compensation can be recovered if the statute does not give it. Titus v. Boston, 161 Mass. 209. See Bacon v. Boston, 154 Mass. 100, 102; Caledonian Railway v. Ogilvy, 2 Macq. 229, 235 ; Ricket v. Metropolitan Railway, L. R. 2 H. L. 175, 187. If what is done does amount to a taking, of course, if the statute gives no compensation, an action can be maintained, since the Legislature cannot authorize property to be taken without being paid for.

The question what the statute gives compensation for is a matter of construction. But as the phraseology is likely to be somewhat general, it is desirable that a general rule should be applied. Such a rule exists in England, but under our decisions there are difficulties which are mentioned in Stanwood v. Malden, 157 Mass. 17, and Taft v. Commonwealth, 158 Mass. 526, 547, 548. In the former of these cases the English rule is stated a little too broadly. 157 Mass. 18. One thing seems pretty clear, however, and that is that, if the damages complained of would be a nuisance but for the statute, a court should be more ready to find a remedy under the act than in a case of damnum absque injuria at common law. We mention this because the contrary assumption seems to be made in the third and sixth requests of the respondent, the former of which was given by the court. If the nuisance, instead of being a necessary consequence of what the act allows, is a result of mismanagement, the case is different. Badger v. Boston, 130 Mass. 170.

Statutes like the present, which contemplate a taking of land, generally do not provide for compensation unless there is a taking, and therefore in proceedings under the act some of the petitioner’s land must have been taken in order to give him a standing in court. Whether this is just or not, so long as it is within the limits of the Constitution, is not for us to consider. It is enough for us that this condition generally is found in the words of the act. See Rand v. Boston, ante, 354. If, however, a part of the petitioner’s land has been taken, his locus standi is established, and the question of construction just referred to arises, as to what, if any, damages shall be allowed for the harm to his adjoining land. Assuming that none of the damages claimed could be recovered under the act but for the taking, one naturally asks why the taking of adjoining land should make a difference. The question has been asked a great many times, and the difficulty will be found forcibly stated by Lord Esher, in The Queen v. Essex, 17 Q. B. D. 447, 452. If such a difference is to be made, the foundation for it must be found in the words of the statute. It may be said, to be sure, that the petitioner gets no more than justice even if others get less; and that when he is compelled to sell the land we ought to consider all that he naturally would consider in fixing the price for a voluntary sale. See Blesch v. Chicago & Northwestern Railway, 48 Wis. 168, 189; Cowper Essex v. Local Board for Acton, 14 App. Cas. 153, 177. A suggestion has been made that the injurious affecting of the petitioner’s land by the use of the land taken, as distinguished from the construction of the works, is a particular injury different in kind from that which is suffered by the rest of the world. Cowper Essex v. Local Board for Acton, 14 App. Cas. 153, 161, 162. But the distinction remains a somewhat arbitrary one. The case in which it was laid down under the English statutes, In re Stockport, Timperley, & Altringham Railway, 33 L. J. (N. S.) Q. B. 251, was criticised often before it finally was accepted, although there is no doubt that now it is settled law. The Queen v. Essex, 17 Q. B. D. 447 ; S. C. sub nom. Cowper Essex v. Local Board for Acton, 14 App. Cas. 153, 162, 164, 169, 173, 178. And it is to be noticed that Lord Westbury, Lord Bramwell, and some other judges, vainly insisted, with a good deal of energy, that the language of the statutes allowed similar compensation when no land was taken, even if at common law there would have been no right of action. Ricket v. Metropolitan Railway, L. R. 2 H. L. 175, 202. Cowper Essex v. Local Board for Acton, 14 App. Cas. 153, 170; S. C. 17 Q. B. D. 447,450. Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418, 461. Hammersmith & City Railway v. Brand, L. R. 4 H. L. 171, 215 et seq.

Some damages are allowed by our decisions which could not be suffered except by reason of the taking. The lot from which a part is taken is considered as one whole, as it is in England. Maynard v. Northampton, 157 Mass. 218. A disadvantageous change in the shape or size of what remains clearly is a matter for compensation. And the principle which warrants such allowances was held logically enough in Walker v. Old Colony f Newport Railway, 103 Mass. 10, 15, to extend to considering depreciation of value arising from the proximity of a railroad and the running of trains “ so far as it is due to proximity secured by means of taking a part of the petitioner’s land, and would not have resulted but for such taking,” although it is settled that similar depreciation would not be paid for if no land had been taken. Presbrey v. Old Colony Newport Railway, 103 Mass. 1. Fay v. Salem & Danvers Aqueduct, 111 Mass. 27. Sawyer v. Davis, 136 Mass. 239, 242. Taft v. Commonwealth, 158 Mass. 526, 547. Rand v. Boston, ubi supra. This rule is narrower than that laid down in the Wisconsin and English cases, and if it is open to the objection that it is hard to apply and too refined for practical purposes, at least it has the advantage of cutting down and in theory of doing away with the anomaly which those cases recognize. To that extent the damage could not have been suffered but for the taking of the petitioner’s land, whereas for similar works just outside the petitioner’s land he could not have recovered in the case supposed, either at common law or by the Constitution. The rule laid down gives the damages, but only-the damages due to the taking of the petitioner’s land. It is true that the works might not have been constructed at all if they had not been put where they were, but this consideration is met by the fact that, if they had been constructed just outside his land, the petitioner would have suffered no wrong under the Constitution, or at common law if no statute had been passed, and would have had no remedy under the statute. At all events, the Massachusetts rule has been in force too long now to be questioned. It has been repeated in many cases, and recently was acted on in the former decision of the case at bar. Taft v. Commonwealth, 158 Mass. 526, 548. Drury v. Midland Railroad, 127 Mass. 571, 583, 584. Johnson v. Boston, 130 Mass. 452, 454. Pierce v. Drew, 136 Mass. 75, 85. Cassidy v. Old Colony Railroad, 141 Mass. 174, 178. Wellington v. Boston & Maine Railroad, 158 Mass. 185, 189. Titus v. Boston, 161 Mass. 209, 212.

The statute under which these proceedings took place requires the Commonwealth to pay “ all damages that shall be sustained by any person or corporation by reason of such taking.” St. 1889, c. 439, § 4 (amended after the present taking by St. 1890, c. 270). It is enough to say that these words certainly do not look to any diminution of the liability for taking as it was construed by the decisions rendered before the passage of the act. The Commonwealth had nothing to complain of in the general tenor of the instructions to the jury.

The respondent suggests that harm anticipated from the future use of the sewer cannot be allowed for under the head of damages caused by the taking. Some of the difficulties hinted at in our former decision, 158 Mass. 549, are stated more at length by the Lord Chancellor in Cowper Essex v. Local Board for Acton, 14 App. Cas. 153, but the discussion there brings out plainly what any one who considers the matter must see, that it is impossible to draw a sharp line between the present and anticipations of the future. All values are anticipations of the future. If a jury is of opinion that the proximity of a sewer has a detrimental effect similar to that of the proximity of the railroad in Walker v. Old Colony & Newport Railway, it may allow for it within the limits stated, on the same grounds as in Walker’s case. It is true that a jury ought not to speculate on the mere possibility that land may be put to disagreeable uses. But when land is taken and must be used for a particular purpose, the reasonably probable consequences of a lawful use for that purpose must be taken into consideration. See First Parish in Woburn v. Middle-sex, 7 Gray, 106, 109; In re London, Tilbury, & Southend Railway, 24 Q. B. D. 326, 330, 331; Cowper Essex v. Local Board for Acton, 14 App. Cas. 153, 178.

The foregoing general considerations meet a part of the argument addressed to us on behalf of the Commonwealth. It remains for us to deal with the exceptions specifically so far as they need mention. The first ruling requested was that there was no evidence that the construction of an overflow on the land taken was necessary or reasonably probable. In connection with this may be mentioned an exception to the admission of the item for “ sand sump and overflow, Shirley Gut,” in the estimate of cost of the North Metropolitan Sewerage System by the engineer, Carson, in his report attached to the report of the State board of health, which latter is adopted and made the foundation of the act of 1889, under which these proceedings take place. St. 1889, c. 439, § 3. The report approves the estimate of Carson, and appends his report. We see no reason why the document was not admissible. But the testimony was uncontradicted that the plan had been changed in this particular, and the truth of this testimony practically was assumed by the judge in his charge. If the jury were to find that the possibility of an overflow on the land taken was an element to be considered, they hardly could have done so except on the ground that in their opinion it was a probable or not improbable consequence of the general scheme as presented to them by the evidence and their view, whatever the engineers might say. They had a right to form their own opinion upon the matter, and if that was their opinion they had a right to act upon it, even if every expert assured them that nothing of the kind was to be expected, since such a use of- the land was within the rights taken by the Commonwealth.

Nothing further needs to be said as to the second, third, fourth, fifth, and sixth requests. We do not see anything in the case calling for the seventh ruling asked, that there was no evidence that the uses for which the land was taken were inconsistent with the laying out of a way over the same “ by the proper authorities.” No doubt the Legislature could authorize such a way. The request did not require any more exact proposition. We perceive no advantage which the Commonwealth would have gained from having that statement made.

The eighth ruling asked was that the land on the opposite side of the public street could not be considered as part of the remaining land of the petitioner, for damages to which he could recover in this proceeding. No doubt there are many cases in which the court is able to see, from the way in which they are divided and used, that different parcels of land, even if they adjoin one another, are to be regarded as distinct. Wellington v. Boston & Maine Railroad, 158 Mass. 185. Todd v. Kankakee & Illinois River Railroad, 78 I;;. 530. But the question is a practical one, and the mere intervention of a way legally established, but not visible on the surface of the ground, is not conclusive. If, as here, the whole estate was practically one, the petitioner is entitled to have the damage to the whole of it considered. As was said by Dixon, C. J., we are to look at the land, and not at the map, to ascertain the plaintiff’s damages. Welch v. Milwaukee & St. Paul Railway, 27 Wis. 108, 112. Kansas City, Emporia, & Southern Railroad v. Merrill, 25 Kans. 421,423. Ham v. Wisconsin, Iowa, & Nebraska Railway, 61 Iowa, 716. St. Paul & Sioux City Railroad v. Murphy, 19 Minn. 500. Cowper Essex v. Local Board for Acton, 14 App. Cas. 153, 162, 167. Whitney v. Boston, 98 Mass. 312, 316.

Nothing needs to be added concerning the ninth request, in view of the instructions given. The only other exception was to the admission of the testimony of Taft, the owner, as to the fair rental value of the property. As an owner, he was qualified to testify as to the value. Blaney v. Salem, 160 Mass. 303. And the rental value may be stated as a reason for, or as a means of, arriving at the value of the land. Exceptions overruled.

Justices Knowlton and Morton agree to the result in this case, but dissent from some parts of the reasoning for reasons that appear in the dissenting opinion in Rand v. Boston, ante, 354.