Burt v. Wigglesworth
1875 Mass. LEXIS 220
Mass.
1875
Check Treatment
Gray, C. J.

1. It was clearly within the discretion of the presiding ] adge to hold the parties to their agreement to try the two cases together, if indeed it would not have been within his discretion to order such a trial independently of any agreement. St. 1873, e. 189, § 2. Springfield v. Sleeper, 115 Mass. 587.

2. This proceeding is not like an ordinary action at law. Although the petition of the agent of the United States is the first step in the proceeding, nothing is submitted to the jury but the appraisement and valuation of the land to be taken. The af firmative of that issue rests upon the owners of the land, and, as in other cases of the assessment of compensation to be made for private property or rights taken for the public use, they have the right to open and close, without regard to the question by which party the petition is filed upon which the trial by jury is had. St. 1873, c. 189, § 2. Parks v. Boston, 15 Pick. 198, 208. Connecticut River Railroad v. Clapp, 1 Cush. 559. Winnisimmet Co. v. Grueby, 111 Mass. 543. Burt v. Merchants' Ins. Co. 115 Mass. 1, 14.

3. The matter to be determined by the jury was the market value of the land at the time of the filing of the petition. Burt v. Merchants' Ins. Co. 115 Mass. 1. In estimating that value, the jury might doubtless take into consideration the uses to which the land might probably be applied. And witnesses acquainted with the market value of the land in its existing condition at that time might testify to the fact of what that value was, and state their reasons for their opinion. Dickenson v. Fitchburg, 13 Gray, 546. Sexton v. North Bridgewater, 116 Mass. 200.

But testimony as to what would be the fair rental value of the land with a suitable and proper building upon it related to mere matter of opinion as to the future, not of present fact, and was too prospective and indefinite in its nature to be competent evidence of the present value of the land, not built upon. Fairbanks v. Fitchburg, 110 Mass. 224. Brown v. Providence, Warren & Bristol Railroad, 5 Gray, 35, 39. Wesson v. Washburn Iron Co. 13 Allen, 95, 100. The statement of Comer upon this point was not given by him as one of the reasons upon which his opinion as to the value of the land was founded, but in answer to a distinct question of counsel, which should have been excluded by the presiding judge.

*307The inchoate proceedings of the city council, showing that certain improvements were contemplated to be made by the municipal authorities, which had not been made at the date of the petition, were not competent as independent evidence to show what the market value of the land was at that date. Cobb v. Boston, 112 Mass. 181.

The admission of the testimony of Comer and of the municipal resolves and orders requires the verdict to be set aside.

Exceptions sustained.