Lowell v. Street Commissioners

106 Mass. 540

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1871
• Status: Published

Opinion

Ames, J.

The claim for compensation for land damages, upon which this tax was laid, was uncertain in amount. It is to be submitted to a jury, which may increase or diminish the amount awarded by the city; and for this reason, as well as from its special character, it is not a debt technically, or in the sense of that term as used in pleading and in legal proceedings. Fellows v Duncan, 13 Met. 332. Even when made certain by a verdict accepted, it does not represent the true amount of the conversion of real estate of the owner into personal. It cannot therefore be taken as a proper measure of his ratable capacity.

Under the St. of 1866, c. 174, the damages to the landowner are estimated without any deduction for benefits to be received by reason of increased value of the remaining land in consequence of the improvement. But as one of the incidents of the proceedings, any such benefits may be estimated, and the expenses of the improvement, including the damages so assessed, may be levied upon the remaining land, to the extent of one half of the amount of such benefits. Although the damages are awarded and payable independently of the liability to the subsequent- as» sessment, yet practically, as the latter is made a lien upon the remaining estate, it operates as a counter-claim or set-off, reducing the actual compensation made to the owner of the land taken. It may absorb it entirely.

In assessing land for the purposes of taxation, no allowance is made for any liens or incumbrances that may exist upon it. If therefore the remaining land should be assessed for its full increased value, as it is liable to be, and the estimated damages payable to the landowner should also be included in his valuation as so much additional personal estate, the result would be that the owner might find the estimate of the taxable estate largely increased, without any corresponding increase of his actual possessions.

The effect is especially apparent in the case of a trust investment like the present. So long as the land not taken by the city is held bound by a statute lien, which may require the repayment, by way of an assessment of the expenses, of a part or the whole of the amount awarded as damages, the trust fund cannot be regarded as enlarged by the amount so awarded, nor can it be hell to have been to that extent converted into personal estate.

We are of opinion, therefore, that, until the damages to which a landholder is entitled under the St. of 1866, e. 174, have become fixed and receivable as his absolute personal estate, they do not constitute a debt liable to be included in his ratable estate, ander the Gen. Sts. e. Ijl, §§ 2, 4. Writ to issue.