183 Mass. 254 | Mass. | 1903
These cases come before us on a report from a judge of the Superior Court, founded on the petitioner’s motion for the acceptance of an award and for j udgment in favor of the petitioner thereon, and for the allowance of certain items, of costs which were disallowed in a supplemental award, and om motions of the respondent for the recommitment of the award}, and for the disallowance of certain items of it on account of' errors of law in the award.
An important question relates to the rulings of the assessors in reference to the estimation of damages to the petitioner under the St. 18.74, c. 196, on account of the diminution in value of its real estate by the diversion of water and by other acts done under the statute in the work of improving Stony Brook and its tributaries. The time for which damages were to bq estimated in this branch of the case, was the period between July 1,.1880, and January 1,1898. The assessors were appointed by an agreement in writing made by the parties in pursuance of the St. 1898, c. 262, as well as by a rule of court, and this agreement prescribed for them duties in addition to those under the rule. On July 1, 1880, the petitioner’s property consisted of about eighty-five thousand square feet of land with certain buildings thereon. On
“ While the estate of the petitioner, considering it solely with regard to the uses to which property is ordinarily put in that part of said city of Boston, namely, for the erection of stores, apartment houses, etc., and at the same time disregarding the manufacturing uses for which the property is adapted and for which it has been actually used during this period, may be said to have a market value, that is, a price at which similar property is bought and sold in the market, yet it is clear that the effect of the acts of said city upon said market value would not be a proper measure of damages suffered by the petitioner in this case. In view of the prevailing "use, above indicated, of such property in said locality the complete removal of the brook would undoubtedly have tended to increase rather than to diminish said
It may be that these assumptions were all in accordance with the facts, and that the assessors for this reason have reached a correct result. Indeed, there are some indications of this in the report, but it does not appear; and there is much reason to fear that the assessors did not sufficiently regard the distinction between diminution in the value of the real estate which is to be paid for, and diminution in the profits of a business which is not an element of damage.
In the assessment of damage under the action of tort, the report discloses no error. It is settled that a city is liable for different kinds of negligence, such as were found by the assessors.
The assessors rightly ruled that they had no power to allow as costs sums paid by the petitioner for the services of stenographers at the hearing, and in making reports of evidence. These sums were paid under an agreement between the counsel for the hiring
The assessors were also right in their ruling that they had no power to tax as costs sums voluntarily paid them by the petitioner as compensation for their services. The law provides that the court shall award reasonable compensation to be paid to such officers by the respective counties, and not to be taxed in the bill of costs. See Sts. 1883, c. 216; 1886, c. 51; 1887, c. 289; 1899, c. 458; 1901, c. 366; R L. c. 165, § 54. Whether the assessors are rightly designated in these cases, or whether in a part of their work they are commissioners, their compensation is to be paid by the county under an order of court. Sums paid them voluntarily by the parties, in excess of the sum which the court is expected to award, are not a proper matter for taxation as costs, any more than sums paid in like manner to stenographers. The case of Newburyport Water Co. v. Newburyport, 168 Mass. 541, is not an authority for the taxation of such payments since the passage of the St. 1901, c. 366.
The case must be recommitted to the assessors for the purpose of determining whether the sum allowed as damages under the St. 1874, c. 196, represents anything more than the diminution in value of the real estate for the uses to which it was adapted, by reason of the acts of the city under the statute, and if so, how much.
So ordered.
The assessors found, that the respondent during the period from 1880 to 1898, negligently caused a pollution of the brook both by sewage coming from storm overflows, and by mud and dirt from construction, and diminished the flow of the water by diverting the waters of the brook and of certain tributaries during construction.