O'Malley v. Commonwealth

65 N.E. 30, 182 Mass. 196, 1902 Mass. LEXIS 985

• Court: Massachusetts Supreme Judicial Court
• Decided: October 30, 1902
• Status: Published

Opinion

Holmes, C. J.

This is a petition for the assessment of damages caused by a change of grade and other alterations in Boylston Street in Clinton, opposite to the petitioner’s land. St. 1895, c. 488, § 13. The case comes here on two exceptions taken by the petitioner on questions of evidence relating to damages.

1. An expert called by the petitioner having testified as to the va-Iue of the petitioner’s property and the depreciation of it, was asked by the petitioner whether he had taken into consideration in his appraisal the sales and the number of sales in that vicinity. The judge called attention to the fact that there was no evidence of any sales, and said that unless they ’were referred to he should exclude the question. The petitioner excepted. The exception must be overruled. Ho doubt experts, under the guise of giving the reasons for their opinion, are allowed to get facts before the jury which the jury have no right to consider. But there are limits even to this. Hunt v. Boston, 152 Mass. 168. And when reasons are put into their mouths, it fairly may be required that the facts concerning which they are asked should be material. The judge did not exceed his power in requiring the counsel to indicate what sales he referred to, if any. Furthermore it does not appear what the petitioner expected to prove, or that he was harmed by the ruling. Farnum v. Pitcher, 151 Mass. 470, 475. Honsucle v. Ruffin, 172 Mass. 420.

2. An exception was taken to the admission of a sale to the metropolitan water board. If the judge had been of opinion that, as was found in Cobb v. Boston, 112 Mass. 181,183, the evidence related rather to a settlement of damages occasioned by a taking than a sale, and had excluded the evidence on that ground, very likely we could not have said that he was wrong. Sawyer v. Boston, 144 Mass. 470, 471. But the exceptions show none of the circumstances, — nothing beyond the bare fact of a sale. We cannot say merely because of the name of the purchaser that the sale was not a fair transaction in the market rather than a compulsory settlement. The board has power to purchase as well as to condemn land. ' St. 1895, c. 488, § 4. Presbrey v. Old Colony Newport Railway, 103 Mass. 1, 9. Wyman v. Lexington & West Cambridge Railroad, 13 Met. 316, 326. It is objected that the land sold to the water board was vacant, whereas the petitioner’s had a dwelling and barns upon it. However it might have been if the land sold had had buildings on it and the petitioner’s land had been vacant, Old Colony Railroad v. F. P. Robinson Co. 176 Mass. 387, 389, there is no trouble in this case. A sale of vacant land is evidence of the value of neighboring land. It does not follow that a sale of a house would be evidence of the value of the building next to it. See Pierce v. Boston, 164 Mass. 92, 98.

Exceptions overruled.