Butchers' Slaughtering & Melting Ass'n v. Commonwealth, 169 Mass. 103

Butchers' Slaughtering & Melting Ass'n v. Commonwealth

169 Mass. 103 | Mass. | 1897

Knowlton, J.

The first question is whether Moses, a civil engineer called by the petitioner, should have been permitted to *115answer the question, “ To what percentage of its value is this hundred-foot strip affected by that sewer ? ” The witness had testified that he was not a real estate expert, and did not know the value in dollars and cents of the petitioner’s land. He had testified generally to the effect of the taking upon the development of the land and upon its value. The hundred-foot strip referred to in the question was the land along the road through which the sewer was laid, which the witness said would be impaired in value by the taking, if the strip taken was not adapted to use for a public highway. There was contradictory evidence as to the question whether it was adapted to such a use. Without determining whether the judge might properly, in the exercise of his discretion, have permitted the question to be answered, we think it clear that there was no error of law in excluding the evidence. The evidence related only to a part of the land, and the effect of the taking upon that part would be entirely different if the line of the sewer was adapted to use as a street from the effect if it was not. The question did not direct the attention of the witness to the hypothesis upon which his answer was to be founded, and so far as appears the witness had no opinion in regard to the question which hypothesis was true. In several particulars the case is different from Whitman v. Boston & Maine Railroad, 7 Allen, 313, 328, in which the witness was familiar with the lands in the vicinity, and had had personal experience for a long time in the use of the easement which was destroyed by the taking.

The first of the answers of the witness Whitney, to which exception was taken, did the petitioner no harm. The questions were directed to the contention of the petitioner in argument, that the sewer just constructed would, in a few years, become inadequate for the drainage of the territory through which it passes, and that it would then become necessary to take it up and build a larger one. His first answer was in accordance with the first part of the petitioner’s contention, with a statement that he could not fix the time within which it would be necessary to make further provision for the drainage, and that it might be within twenty years. Certainly the petitioner could not complain of this answer.

His answer to the second question was not objectionable. The *116evidence tends to show that he had given a great deal of study to the subject which he was then considering, and that he was a competent expert. His answer, that “ both the location and the elevation of the new supplementing sewer require it to be put in another place, and make a second sewer necessary at a higher elevation and in another part of Brighton, not in connection with this taking,” was important for the consideration of the jury. The fact, if it was a fact, and if it was not admitted, was a proper subject for proof, and it was a matter in which the study and experience of the witness would greatly aid him in forming a valuable opinion. We think that this evidence was rightly admitted.

The instructions given in regard to the matters referred to in the petitioner’s requests were correct and sufficient. The petitioner contends that the jury should have been told that the Commonwealth may at any time hereafter remove the soil, sand, and gravel to another part of the system of sewers constructed under the statute, and in support of this contention it cites Titus v. Boston, 149 Mass. 164. The facts on which that case was decided are very different from those in the case at bar. The city of Boston had been authorized to build and maintain wharves, pumping works, and reservoirs for a sewer on the main land at or near the mouth of Heponset River, and also to build and maintain a reservoir or reservoirs at Moon Island, and other works essential to a proper and convenient discharge of the contents of the sewer, which was to be a main sewer carrying the drainage of the city of Boston. It had the right to take such lands, buildings, wharves, and structures as might be necessary to accomplish the objects of St. 1876, c. 136, §§ 1, 2. It took the whole of Moon Island, the area of which is about thirty-five acres. It was held that this taking for purposes of construction gave the city the right to carry the loam and gravel excavated in making the reservoirs to the main land, to be used in construction there. Such a use of the property seems fairly to have been contemplated by the statute and the taking under it.

In the present case the statute authorized the taking of “ any lands, watercourses, rights of way, or easements ” necessary to carry out the provisions of the act. St. 1890, c. 270. The ease*117ment taken in the lands of the petitioner was merely “ the right to carry and conduct, under the following described 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 rights of the Commonwealth are limited to the easement taken. It is not reasonably necessary for the maintenance of the main sewer to remove the soil from one part of the system to another in repairing and renewing the sewer, and no right so to do is included in the taking. In this particular the work to be done is so unlike the work of repairing, maintaining, and reconstructing highways, that there is but little analogy between them. The request had reference only to the rights of the Commonwealth to use the land in repairing and renewing the sewer, and we are of opinion that there was no error in this part of the charge.

The exceptions do not show such facts as made it the duty of the judge to give the fifth instruction requested by the petitioner. The respondent did not contend that the Commonwealth was under a contract to maintain this sewer through the petitioner’s land. All that the respondent’s counsel contended was that the Commonwealth was bound, by the sanctity of a moral obligation, not to abandon this great work which it has constructed at an enormous cost, that must, be paid by the people residing in the neighborhood. We think that the argument was legitimate.

The only remaining exceptions relate to the instructions and the refusals to instruct in regard to the set-off of benefits to the land of the petitioner. It is contended that there were no such benefits that could be set off; but it appears that the sewer was constructed through the petitioner’s land in a place which has long been used as a way, and which many witnesses testified was specially adapted to use as a public highway. The petitioner might acquire a right to enter the sewer with its private drains, upon such terms, conditions, and regulations as the proper public authorities might establish. In fact, it has so entered the sewer. St. 1889, c. 439, § 9. The location of the sewer lengthwise through the tract of land has reduced to a minimum the length of the particular drains necessary to connect different *118lots with the sewer, and has made it easy and comparatively inexpensive for the petitioner to drain every part of its land. The jury might find this to be a special and peculiar benefit, which might be set off against the damages, even though other lands received similar benefits. Allen v. Charlestown, 109 Mass. 243. Hilbourne v. Suffolk, 120 Mass. 393. Donovan v. Springfield, 125 Mass. 371. The general doctrines applicable to this part of the case were correctly stated and sufficiently explained to the jury.

There was evidence from which the jury might have found a special and peculiar benefit to the property, growing out of a special use to which it was adapted. A large number of buildings have been erected upon it, designed to be used in killing and dressing animals intended for food, and in rendering into useful products the parts unsuitable for food in their natural state. Previously to the construction of the sewer the drainage from these buildings was conducted into the river. There was evidence from which the jury might have found that this drainage was creating a nuisance, and that it would have been impossible for the petitioner to continue using the property in this business if the sewer had not been built. The jury might also have found that the real estate, including the erections upon it, was much more valuable for this use than for any other. The petitioner contends that the jury were erroneously instructed in regard to benefits in reference to this use. If the jury had been permitted to set off benefits to the business of the petitioner, as distinguished from benefits to the real estate in view of its adaptedness to this business, it would have been erroneous. There are expressions in the charge which, taken by themselves, might indicate that benefit to the petitioner’s business was to be considered; but when we consider all that was said upon the subject, we are of opinion that the jury must have understood that they were to consider the business only so far as the value of the real estate and the benefits received by it were affected by its adaptedness to be used in that business. A question which the jury were instructed to answer was in these words: “ Was the location of the sewer through the petitioner’s land a subject of peculiar benefit to it, beyond that generally enjoyed by others, by reason of the fact of the peculiar business to *119which its buildings were adapted?” This called attention to the real estate, and not to the business in which the petitioner happened at that time to be engaged. See Maynard v. Northampton, 157 Mass. 218, 219, and cases cited. The whole charge is to be considered, so far as it relates to this subject, and the language must be understood as correctly presenting the question whether, by reason of the large and valuable works erected upon the land, it was adapted to a particular use for which its value was specially increased after the construction of the sewer, on account of the additional facilities for drainage afforded by the sewer.

In the opinion of a majority of the court, the entry should be Exceptions overruled.