321 Mass. 240 | Mass. | 1947
This is a petition for the assessment of dam-áges arising from the talcing and diversion by the Commonwealth, acting through the metropolitan district water supply commission in accordance with St. 1927, c. 321, of certain waters of the Swift River in connection with the construction and maintenance of the Quabbin Reservoir, which also receives the waters diverted from the Ware River under St. 1926, c. 375, and serves as an additional supply of water for certain cities and towns situated outside the metropolitan water district.
The Chicopee River begins at the confluence of the Ware, Swift and Quaboag rivers and discharges into the Connecticut River, a navigable stream. The petitioners are the owners of land upon the Chicopee River at two different locations. They have a large tract of land on both sides of the Chicopee River in Ludlow, having a frontage of a mile and a half on the river, upon which were located a large number of buildings for the manufacture and storage of jute and hemp products, together with nearly five and one half miles of railroad track, two locomotives and thirteen box cars for transportation to and from these various buildings. A hydroelectric power plant was also located upon
1. The Commonwealth was permitted to show that the petitioners’ properties at Red Bridge and at Ludlow were damaged by the hurricane of September, 1938, upon the theory that the construction and operation of the Quabbin dam would either reduce or eliminate any future damage to these properties from floods. There was also evidence that this flood was the most severe ever recorded in the western part of the Commonwealth, and that it was not likely to occur again within the next two hundred fifty years. The unusual extent and violence of the flood and the consequential damage due to it have been mentioned in a number of decisions of this court in cases attributable to this hurricane. Hoosac Tunnel & Wilmington Railroad v. New England Power Co. 311 Mass. 667. Krikorian v. Grafton Co-operative Bank, 312 Mass. 272. Murray v. Continental Ins. Co. 313 Mass. 557.
Statute 1927, c. 321, § 4, provides that all proceedings in relation to takings of property or rights in property shall conform to the provisions of G. L. c. 79, except in certain particulars not now material. In the determination of damages under G. L. (Ter. Ed.) c. 79, § 12, where no
In order to be set off against the damages, a benefit must accrue directly to the land from the public improvement. It must be of peculiar and direct benefit to the land, giving to the land an advantage that it did not possess previous to the taking, and the increase in the market value of the land must be actual and real and one that may be presently estimated with a reasonable degree of certainty. Meacham v. Fitchburg Railroad, 4 Cush. 291. Hilbourne v. County of Suffolk, 120 Mass. 393. Childs v. New Haven & Northampton Co. 133 Mass. 253. Fifty Associates v. Boston, 201 Mass. 585. Hall v. Commonwealth, 235 Mass. 1. Saltonstall v. New York Central Railroad, 237 Mass. 391, 397. An advantage that is so remote and speculative that it might never result from the public improvement and so cannot add to the present value of the remaining land is not deductible from the damages. The gqverning principle is
There was no evidence that the petitioner’s properties were so situated that they had been or were likely to be damaged by any of the floods which ordinarily occur or which might reasonably be expected to occur in that district. Upon this record, it cannot be reasonably anticipated that a flood approaching in intensity and violence that of September, 1938, will again visit the locus in either the immediate or the distant future. Whatever protection the Quabbin dam might afford against floods, it is plain that such protection was not needed by the petitioners’ lands in the condition they were in at the time of the diversion of the waters of the Swift River, and, adequate provisions having been made against damage from floods, no further protection, even if available from the dam, would confer upon these lands a benefit they did not already have. The dam does not confer any special benefit upon these properties. In admitting the evidence that the petitioners’ lands were damaged by the flood of September, 1938, on the ground that it could be found that the erection and maintenance
2. The order for taking, which was dated October 5, 1939, although the actual diversion was made on August 7, 1939, took all the. waters of the Swift River, at a designated point of diversion, in excess of a flow of twenty million gallons a day. It further provided that no water was to be diverted when the flow was less than this amount and that there should be discharged from any storage created by the Commonwealth a sufficient amount of water to maintain, so far as said storage would, allow, a flow of not less than twenty million gallons a day. The order also provided that “Any diversion made under this taking shall comply with such regulations and decisions as may from time to time be made with respect thereto by the Secretary of War acting under authority of the Acts of Congress of March 3, 1899, Chapter 425, Section 10, 30 Statutes at Large 1151.” U. S. C. (1940 ed.) Title 33, § 403.
A riparian owner, as an incident to the ownership of the land, has the right to have the natural flow of a stream come to his land and to make such use of the water as will be reasonable with respect to similar rights of all other riparian owners. Barrett v. Parsons, 10 Cush. 367. Pratt v. Lamson, 2 Allen, 275. Moulton v. Newburyport Water Co. 137 Mass. 163. Mason v. Whitney, 193 Mass. 152. Stratton v. Mount Hermon Boys’ School, 216 Mass. 83. Isbell v. Greylock Mills, 231 Mass. 233. A State, however, may change this rule and may authorize the appropriation of the flowing waters for such purposes as it may deem to be in the public interest, United States v. Rio Grande Dam & Irrigation Co. 174 U. S. 690, Kansas v. Colorado, 206 U. S. 46, Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd. 291 U. S. 138, Greeson v. Imperial Irrigation District, 59 Fed. (2d) 529, California-Oregon Power Co. v. Beaver Portland Cement Co. 73 Fed. (2d) 555; but the power of the State is subordinate to that of the Federal government, which possesses plenary control over all navigable streams in the interest of interstate commerce and has full authority to control the flow in navigable streams and, for
The nature of the restrictions imposed by the Secretary of War relative to the diversion of the waters of the Ware and Swift rivers has been well stated in Connecticut v. Massachusetts, 282 U. S. 660, 665, in these words: “After hearing both sides and examining the facts, the Secretary permitted diversion of the flood waters of the Ware in excess of 85 million gallons per day between October 15 and June 15 and prohibited the taking of any water except during that period. He permitted diversion of all waters of the Swift except enough to maintain a flow therein of 20 million gallons per day; but he required that, during the period from June 1 to November 30 there shall be released from the impounding dam 110 cubic feet per second (71 million gallons per day) whenever the flow of the Connecticut at Sunderland, Massachusetts (a town 20 miles north of the confluence of the Chicopee and Connecticut) is 4650 cubic feet per second or less, and 70 cubic feet per second (45 million gallons per day) when the flow is more than 4650 and less than 4900 cubic feet per second. The Secretary found that the discharge at Sunderland of 4650 cubic feet per second corresponds to an average gouge height at Hartford of two feet and that a discharge of 4900 cubic feet per second corresponds to 2.1 gouge height at Hartford.” The binding effect of these restrictions upon the Common
The restrictions were incorporated in the order of taking and determined the extent of the taking and, this being the full measure of the amount of water that the Commonwealth could take, the jury had the right to determine what decrease in the market value of the premises of the petitioners resulted from the diversion of water to the amount and in the manner set forth in the order. There was no error in the admission in evidence of these restrictions in so far as they affected the taking of the waters of the Swift River. Their admission as to the withdrawal of water from the Ware River was not prejudicial error. Noyes v. Gagnon, 225 Mass. 580. Flint Co. v. Dana, 246 Mass. 577. Waxman v. Cohen, 253 Mass. 548. Glass v. Metropolitan Life Ins. Co. 258 Mass. 127. Stegemann v. Kelley, 267 Mass. 450.
If these restrictions have not been enforced by the Federal government, as the petitioners contend, that does not prove that they have been abandoned or are no longer in effect. Their nonenforcement does not destroy their validity, and they continue to have the same force and effect as if strictly enforced. The Commonwealth remains bound by them until they are repealed or rescinded, and must permit the flow of water in the Swift River in the quantity required by these restrictions. Wellington, petitioner, 16 Pick. 87, 102. Commonwealth v. Davis, 140 Mass. 485. Painless Parker v. Dental Examiners, 216 Cal. 285. State v. Burr, 79 Fla. 290. Shutt v. State, 173 Ind. 689. Pearson v. International Distillery, 72 Iowa, 348. Snowden v. Snowden, 1 Bland, 550. State v. Mellor, 140 Md. 364. Naughton v. Boyle, 129 Misc. (N. Y.) 867. Homer & Son v. Common
The compensation to which the petitioners are entitled is based upon the exercise by the Commonwealth of the right to take the waters of the Swift River to the full extent authorized by the order of taking and in conformity with the restrictions of the War Department then in effect and incorporated in the order. If the restrictions are subsequently made more onerous and require the Commonwealth to permit a greater amount of water to flow in the Swift River with a consequential benefit to the petitioners, the amount of compensation to which the petitioners were entitled under the taking of October 5, 1939, would not be diminished by such a change, Ipswich Mills v. County Commissioners of Essex, 108 Mass. 363, Bailey v. Woburn, 126 Mass. 416, Howe v. Weymouth, 148 Mass. 605, Im-bescheid v. Old Colony Railroad, 171 Mass. 209, Rockport v. Webster, 174 Mass. 385, 392, Turner v. Gardner, 216 Mass. 65, 69; on the other hand, if the restrictions are removed or altered so that the Commonwealth in so far as the restrictions are concerned might retain more water, then such additional amount cannot be withdrawn, unless a new taking is made and additional compensation paid to the petitioners. Each successive taking must be paid for. See Broderick v. Department of Mental Diseases, 263 Mass. 124. The effect of the restrictions on the flow of water in the Swift River could properly be shown in evidence.
3. The respondent’s counsel in the cross-examination of a witness started to introduce evidence that there is equipment or construction at the Quabbin dam designed to house an electrical generator and, upon objection by the petitioners, the judge stated that he thought it had been agreed at the view that there was such construction and then withdrew this statement, telling the jury that apparently the petitioners had not so agreed. The witness then was permitted to answer that he was aware that a foundation had been laid for the purpose of installing a hydroelectric turbine
4. The petitioners excepted to the exclusion of certified copies of seven deeds running to the Commonwealth from owners of certain parcels, of land located upon the Chicopee River, upon each of which a system of water power had been developed and used in connection with an industrial plant situated upon the premises or for the generation of power for sale. These deeds were executed during the period from November 24, 1931, to August 20, 1934. Each of them recited that the Commonwealth had taken on March 6, 1931, certain waters of the Ware River in accordance with St. 1926, c. 375, and that the Commonwealth was authorized and intended to take certain waters of the Swift River by virtue of St. 1927, c. 321; that the grantor was the owner of certain premises bordering on the Chicopee River and water rights therein; and that it was the intention of the grantor to release all its right and interest in the waters which the Commonwealth was authorized to take from the Ware and Swift rivers and to arrive at a settlement in full for all claims for damages present and future on account of the diversion of water from both these rivers. The grantors for a consideration
We first consider the admissibility of this table. Statute 1926, c. 375, which established the commission and defined its powers and duties, which were chiefly concerned with securing a supply of water from the Ware River, required the commission by § 1 to make an annual report, in conformity with G. L. c. 30, § 32, providing for the preparation of annual reports by certain State officers and departments, which, "except for facts or information specifically required by law, shall be a brief summary of the said year’s work.” See now G. L. (Ter. Ed.) c. 30, § 32, as appearing in St. 1945, c. 292, § 4. These reports were to be printed as public documents at public expense and distributed in accordance with G. L. c. 5, §§ 6, 7. We assume in favor of the petitioners that the duty of the commission to prepare such reports with reference to the Swift River was imposed upon the commission by St. 1927, c. 321, § 25.
The report in question was a public document, but it did not thereby become admissible evidence of the truth of its contents. Public documents are public records within G. L. (Ter. Ed.) c. 4, § 7, Twenty-sixth, but that definition exists for the purpose of construing "public records” as those words appear in the statutes and was not intended to make any changes in the rules of evidence. The publication of the details of settlement made with those whose properties were taken by eminent domain was not “specifically required by law,” and whether they should be included in a report was optional with the commission. Their inclusion in the report did not give them evidentiary value. Not all documents which have been prepared by a public official and filed in a public office and which therefore are in a sense public documents are evidence of the truth of the matters that they contain. The statute, G. L. (Ter. Ed.)
The judge also excluded the deeds. We do not know upon what ground that ruling was made. During the argument on the admissibility of that evidence the judge mentioned that the deeds might represent settlements of damages made with the grantors. It is to be noted that the grantors were described as owners of certain defined parcels of land on the Chicopee River together with water rights on the river. It was further stated that they intended to arrive at a settlement in full for any and all claims for damages that they might have because of the diversion of water and that for the consideration named they released all claims “for damages to the aforesaid property in said Chicopee.” He might have come to the conclusion, from an inspection of the deeds and the table in the annual report which was offered with the deeds, that they did not furnish a standard for the evaluation of water rights alone. The deeds included a release to the Commonwealth of all claims and all rights of action, past, present and future, for damages to the real estate arising from “the carrying out” of the provisions of St. 1926, c. 375, and St. 1927, c. 321. We cannot say that, in view of the character of the proffered evidence, he was wrong. Cobb v. Boston, 112 Mass. 181, 183-184. Donovan v. Springfield, 125 Mass. 371. Sawyer v. Boston, 144 Mass. 470. Henry J. Perkins Co. v. Springfield, 248 Mass. 447.
5. As there must be a new trial of this case by reason of sustaining exceptions already discussed, it is proper to discuss the questions that are likely to be presented with
If it is made to appear that the water rights taken from the petitioners are substantially similar to those taken from the other riparian owners, save only in the extent of the rights taken, and that the taking from them was not too far distant in space and time from the taking in question, then it is to be reasonably expected that the judge in the exercise of a sound discretion will find that the value of those rights will furnish a fair standard of the value of the petitioners’ rights, provided it is shown by those having knowledge of the details involved, including the basis upon which the payments were in fact computed, that the transactions between the Commonwealth and these other riparian owners amounted in reality to a purchase and sale of water rights and nothing more, irrespective of the form in which these transactions were clothed and, finally, provided it is shown that these sales were voluntarily and freely made between these riparian owners and the Commonwealth.
The general rule governing the admission in evidence of the sales of land similar to the land in controversy is well settled in this jurisdiction, Patch v. Boston, 146 Mass. 52; Lyman v. Boston, 164 Mass. 99; Fourth National Bank v. Commonwealth, 212 Mass. 66; McCabe v. Chelsea, 265 Mass. 494; Iris v. Hingham, 303 Mass. 401, although its application is not always easy due to the fact that there is such a wide range of differences between various properties that it becomes the duty of the judge in the exercise of sound discretion to determine whether the degree of similarity is so high that the sales of other properties will furnish a practical aid in determining the market value of the property in issue, Shattuck v. Stoneham Branch Railroad, 6 Allen,
The sales of similar properties, however, cannot furnish evidence of the value of the property taken, unless the sales of these properties were made in such circumstances as to show their fair market value. The factors that influenced one to sell and the other to buy vary within a wide compass and may be open to investigation and explanation. Manning v. Lowell, 173 Mass. 100. Lawrence v. O’Neill, 317 Mass. 393, 397-398. A sale produced by compulsion exerted on the seller by the buyer is not a standard of fair market value. A sale to one having the power either to purchase or to take by eminent domain is not for that reason alone to be excluded. Our decisions uniformly hold that a sale not freely and voluntarily made must be rejected as evidence of market value, but some cases seem to indicate that a sale to the party having the power to condemn is as matter of law not free from compulsion. See Cobb v. Boston, 112 Mass. 181; Sawyer v. Boston, 144 Mass. 470; Providence & Worcester Railroad v. Worcester, 155 Mass. 35; Henry J. Perkins Co. v. Springfield, 248 Mass. 447. To rule that all such sales are not free from compulsion rests upon an assumption that is not warranted. Payments to these riparian owners preceded by from five to nearly eight years the actual diversion of water from the Swift River. Doubtless, a sale to a party possessing the power of eminent domain must be scrutinized more closely than one to a party not possessing that power, but if found to be free and voluntary there is no reason why it should be treated differently from one made to such a party. The burden of proving that the sales of these other properties were voluntary transactions is upon the petitioners. It was said in Epstein v. Boston Housing Authority, 317 Mass. 297, 301, “We think that there is a presumption, in the technical and
. ,6. In response to a request by the respondents counsel^ the petitioners produced a lease to the Ludlow Manufacturing & Sales Co. of a portion of their premises together with an accompanying plan, both of which were examined-by the respondent’s /counsel. The petitioners then- offered the lease and plan in evidence. They should have been admitted. Leonard v. Taylor, 315 Mass. 580. As.there must be a new trial, we need not decide whether, their exclusion constituted reversible error. The income received from the use and occupation of land is evidence of its market value, Lincoln v. Commonwealth, 164 Mass. 368, 380, Levenson v. Boston Elevated Railway, 191 Mass. 75, 77, Crocker-McElwain Co. v. Assessors of Holyoke, 296 Mass. 338, 346, Ryder v. Lexington, 303 Mass. 281, 292; but income derived from a business conducted upon the premises depends on various factors not.attributable to the land and furnishes no criterion for the determination of .the market, value of the land. Bailey v. Boston & Providence Railroad, 182 Mass. 537. Brackett v. Commonwealth, 223 Mass. 119, 126. Powers v. Rittenberg, 270 Mass. 221, 224. Revere v. Revere Construction Co. 285 Mass. 243, Assessors of Quincy v. Boston Consolidated Gas Co, 309 Mass. 60, 64. The compensation to be paid by the lessee included compensation for matters other than the use and occupation of; the demised premises, but it may be that the.portion paid for such use and occupancy could be. segregated if-the lease had been admitted in evidence and the petitioners had .been permitted to introduce oral evidence of what was contained ;in a written statement which was submitted as an offer of proof.
7-, There was no error in the admission of the assessors’ valuation. Such evidence was competent by virtue of G. .L-(Ter.- Ed.) c. 79, § 35, and applied to the instant.proceedings by virtue of • § 45 of said chapter and.by § 4 of c. 321 of St, ,1927. The applicability of c. 79 to proceedings under St. 1927, c. 321, has already been discussed in this opinion in dealing with the right to set off benefits against damages, under § 12 of c. 79. -
Exceptions sustained.
