163 Mass. 386 | Mass. | 1895
We are all of opinion that when land, or an easement in land, is taken under the right of eminent domain, and damages are to be assessed as a compensation to the owner for the value of the land taken, and the injury, if any, to his remaining land, the owner may put in evidence the reasonable cost of any necessary adaptation of his land to the new state of things produced by the public work for which his land was taken, if the adaptation and the cost are proper, having reference also to the market value of his own estate. And we are also all of the opinion that, when such damages are to be assessed, if it is contended by the respondent that the damages are offset in whole or in part by some special and peculiar benefit caused to the petitioner’s property by the public works for which his land was taken, the fair and reasonable cost to the petitioner of making that special and peculiar benefit practically available is to be taken into account in ascertaining the amount of special and peculiar benefit to be offset, and so may be given in evidence by the petitioner upon the assessment of damages.
In the present case it was contended by the petitioner that the laying of the State sewer through its lands, which were used as slaughtering and rendering works, with drainage into the Charles River, made a new adaptation of its works to the changed condition of affairs necessary and proper, and it introduced in evidence without objection, an order from the State board of health to discontinue its drainage into the river, and subsequent letters to the petitioner from the sewer department of the city and the Metropolitan Sewerage Commission, concerning a plan of a particular or private sewer which the peti
At the time of the trial, the State sewer had been completed, and the petitioner was then building its proposed particular sewer, sixteen hundred and eighty-five feet in length, upon its own lands, parallel with the State sewer, and connecting with it at three points. Under these circumstances, the petitioner's treasurer was asked to state the expense of its particular sewer, and the question was excluded, and the petitioner excepted. The bill of exceptions states that “this evidence was offered as showing one element of damage suffered by the petitioner by the taking of his land,’’ and the bill states no reason why the evidence was objected to or was excluded.
A majority of the court are of opinion that the exception to the exclusion of this evidence must be sustained. The question no doubt called for the cost of building a particular sewer which the petitioner had seen fit to commence; and there was no offer in terms to show that it was a reasonably necessary or proper expenditure to make in reference to its effect on the market value of the property, nor an offer in terms to show that this expense was the reasonable cost of the work which was in process, and to be done; and it was possible that the work may have been done extravagantly. But the correspondence in evidence tended to show that the petitioner’s plans for the connection of its works with the State sewer by means of the sewer, the cost of which was offered in evidence, were reasonable ; and there is no such presumption that in practical affairs men will engage in useless work, or will do it extravagantly, as to make it right to exclude the evidence offered, upon the ground that, though under some circumstances it might be admissible,
We are all of opinion that the second exception should be overruled. Under this exception, the respondent was allowed to show the mode of construction of the State sewer, and to introduce evidence tending to prove that the' sewer would carry a considerable weight of buildings over it, and that, as repairs could be made from the inside through the manholes, it would never be necessary to disturb the soil in repairing it. The petitioner contends that because the damages accrued, and were fixed at the time of the taking, no evidence should have been admitted of what has been since done in the construction of the-sewer. But the respondent took only an easement, the right “ to carry and conduct under the . . . lands, and therein to construct, operate, and forever maintain an underground main sewer, and connecting sewers, drains, manholes, and underground appurtenances, and to repair and renew the same.” The petitioner still had the right to use his land in any way not inconsistent with the exercise of the easement taken, and may erect buildings over the sewer if it can do so without interfering with the reasonable exercise of the respondent’s rights. Clark v. Worcester, 125 Mass. 226.
The question for the jury was, How far would the exercise of the right taken be likely to affect the petitioner’s general right
As the first exception is sustained, there must be a new trial. So ordered.