160 Mass. 303 | Mass. | 1894
This is a petition for the assessment of damages caused by the respondent’s taking of flats belonging to the petitioner, under St. 1886, c. 324, and St. 1887, c. 409. At the trial the petitioner was allowed to testify to “ the best plan to develop the flats taken, to get the most out of them,” which he stated was to build stores on them, stating modifications in the mode of building if fifteen feet adjoining the next estate had to be left open, and if the dock was not filled up. The respondent excepted.
It hardly is denied that, if the flats had been unencumbered and the petitioner had had a right to build upon them, the evidence would have been competent, (Maynard v. Northampton, 157 Mass. 218,) provided the petitioner is to be regarded as qualified to speak upon the subject, as we think he is. Shattuck v. Stoneham Branch Railroad, 6 Allen, 115. The question is whether the evidence necessarily was made incompetent by the existence of a restriction. It is said that the flats in question were subject to an easement which prevented their being built upon, and that the petitioner had no license to build upon them as required by law apart from the alleged easement, and therefore that the question was misleading. Assuming the facts to