Bancroft v. City of Boston, 115 Mass. 377

Bancroft v. City of Boston

115 Mass. 377

| Mass. | 1874

Wells, J.

In this case the street was widened under the provisions of the St. of 1866, c. 174, which do not permit the set-off of benefits in estimating the damages to the land-owner. The value of the whole benefit and advantage to the estate should therefore be determined for the purposes of the assessment under the St. of 1868, c. 276, so far as it was caused by the widening of the street. The first ruling prayed for was erroneous, and properly refused.

*379The second and third rulings prayed for contain correct propositions which should have been given in some form, though not precisely in that of the prayers. The benefits to be estimated are those which arise from the improvement of the street. Not only the increased facilities of access, the advantage from the opening of a broader and more attractive or convenient thoroughfare in its effect upon the use of the land for the purposes of business or other occupation, but the increased value for the purposes of sale may all be taken into consideration. But so far as an increase of relative value for the purposes of sale results merely from a reduction in the size of the lot, it is not a benefit conferred upon the land by the public improvement. If any consideration of that sort is to be taken into account, it must be in the estimate of damages ; not as a set-off, but as affecting the question of the extent of injury to the whole lot by cutting off a part for the street. The same is true of the effect of cutting off the front, and thus bringing forward to the street or nearer to the street that which was before at a greater distance from the street. The effect upon the whole lot, caused by cutting off a part, in view of the advantage or disadvantage to the remainder in respect of its size or form, is always and necessarily an element in the estimate of “ damages for land taken.” It should not therefore be again included in the estimate of benefits.

The jury determined the benefit to be $6465, and to their verdict in that particular there appears to be no ground of objection in law. The board of aldermen had adjudged the value of the benefits to be $9000, and had assessed the petitioner $4500, or one half the amount thereof; and the report states that “ the whole assessment made by the board of aldermen did not exceed the whole cost of widening the street.” It must be assumed upon this report that the assessment was of a proportional share upon all the estates benefited and liable to the assessment; and that the cost was so great as to warrant an assessment to the full extent allowed by the statute; to wit, one half the adjudged value of the benefits. When the jury, in revising the judgment of the board of aldermen, determined the benefits to be $6465, and did not find the whole cost to be less than the amount assessed by the board, the only “ proportional share ” which could be assessed was one half of the amount so fixed by them as the value of the *380benefits. The ratio of one third which they adopted, and any other ratio than one half, would not be a “ proportional share ” and was not therefore within the power of the jury.

According to the terms of the report the verdict must be set aside and a New trial ordered.