| Mass. | Mar 17, 1874
This is a proceeding for the assessment of damages to the owners of land appropriated to the use of the United States for the enlargement of the post office in Boston, in accordance with statutes duly passed by Congress, and by the legislature of the Commonwealth. U. S. St 1873, c. 227. St. 1873, c. 189. Burt v. Merchants’ Ins. Co. 106 Mass. 356" court="Mass." date_filed="1871-03-15" href="https://app.midpage.ai/document/burt-v-merchants-insurance-6416371?utm_source=webapp" opinion_id="6416371">106 Mass. 356.
The rights of the government on the one hand, and of the owners of the land on the other, are secured by a provision "‘n the act of Congress that no money appropriated for the purpose shall be expended until a valid title to the land shall be vested in the United States; and by provisions in the statute of Massachusetts that the title shall vest in the United Spates only upon payment of the amount of the assessment made by the jury and confirmed by the court, and that until such payment the United States shall not enter into or take possession of the land, or exercise any act
But the compensation to be paid by the government and received by the owners of the land must be estimated according to the value of the land at the time of the filing of the petition. This affords a definite and invariable rule, which has relation to the time at which the property is designated and set apart for the public use, the owners ascertained who are entitled to be compensated, and the judicial proceedings instituted for the purpose of determining such compensation ; and is not liable to be affected by the duration of these proceedings, or by increase or diminution in value, whether occasioned by the taking itself, or by acts of the owners, lapse of time, or other circumstances. In all these respects, it is a juster measure of compensation than a valuation of the estate at any subsequent point of time. And it accords with the rule as settled in this Commonwealth in the analogous cases of lands taken for highways and railroads.
It is true that in those cases the right in the lands vests in the public upon the location of the way; and that has been assigned in the later decisions as a sufficient reason for estimating the damages as of the time when the land is set apart for the public use. But it is not the only reason. In the leading case of Parks v. Boston, 15 Pick. 198, 208, which was a proceeding to assess damages for land taken for a highway, Chief Justice Shaw said: “ It is not, strictly speaking, an action for damages; but rather a valuation or appraisement of an incumbrance created on the plaintiff’s estate, for the use of the public. It is the purchase of a public easement, the consideration for which is settled by such appraisement only because the parties are unable to agree upon it. The true rule would be, as in the case of other purchases, that the price is due and ought to be paid, at the moment the purchase is made, when credit is not specially agreed on. And if a pie-powder court could be called on the instant and on the spot, the true rule of justice for the public would be, to pay the compensa tian with one hand, whilst they apply the axe with the other ; anti this rule is departed from only because some time is necessary, by
It follows that the learned judge of the Superior Court erred in instructing the jury that the value of the land was to be estimated as of the time of the trial and verdict, and that for this reason the petitioner’s exceptions must be sustained, and a new trial had.
One other question, fully argued at the bar, must arise again upon a new trial, and should therefore be now considered.
The St. of 1873, e. 189, § 2, provides that if any persons, other than the owner of the estate, shall appear and claim any interest therein, the value to the owner of the fee and to all persons interested in the estate shall be ascertained and apportioned in the same manner as is provided for the assessment of damages upon the taking of lands and buildings for highways in § 55 of a. 43 of the Gen. Sts. That section provides that the jury “ shall first find and set forth in their verdict the total amount of the damages sustained by the owners of such land and buildings, estimating the same as an entire estate and as if the same were the sole property of one owner in fee simple; and they shall then apportion the total amount of damages among the several parties whom they find to be entitled, in proportion to their several interests and claims, and to the damages sustained by them' respectively, and set forth such apportionment in their verdict.” The situation of the estate and the manner of its occupation are doubtless to be taken into consideration in assessing the damages for taking the land and disturbing that occupation. But no contracts between the owners of different interests in the land can affect the right of the government to take the land for the public use, or oblige it to pay by way of compensation more than the entire value of the land as a whole. Edmands v. Boston, 108 Mass. 535" court="Mass." date_filed="1871-11-15" href="https://app.midpage.ai/document/edmands-v-city-of-boston-6416707?utm_source=webapp" opinion_id="6416707">108 Mass. 535. Penny v. Penny, L. R. 5 Eq. 227.
But we are of opinion that the petitioner shows no just ground of exception to the instructions in this respect. The jury were clearly directed to ascertain in the first place the total amount of the \alue to the owners of the estate, estimating it as an entire estate as if it was the sole property of one owner in fee simple, regard being had to the situation of the estate and the manner of its occupation; and then divide that total value among the
The remaining questions discussed at the argument may take a new shape or become immaterial upon a new trial, and therefore require no further notice. But, for the error as to the time of which the valuation should be made, the
Petitioner's exceptions are sustained.