The only exception presented in this case is that to the admission of the testimony of Kelsey L. Gilmore.
Among other witnesses, the petitioner called Kelsey L. Gilmore, whd testified that he lived in Lexington, Massachusetts, and had been engaged in the city of Somerville for forty-one years in the business of bleaching, dyeing, printing, and finishing cotton goods; that he bought the mill in which he was manufacturing in Somerville in 1878 ; that he never bought any other mill or mill site and never sold a mill or mill site ; that he did not know of purchases or sales of mill sites; that he had examined .the land of - the petitioner in question with reference to forming an opinion as to its availability for a site for a mill
The court ruled: “ If the witness states that he is familiar with the values of properties of this sort, of this kind, although for a particular purpose, I do not think his testimony incompetent. I think if he can say that he is familiar generally with the value of property of this kind, that he may testify.” The witness was then asked : “ Please state in your opinion what is the value of that combination there, that land and water there. What is the value, the fair market value of this combination of land here with the water power for the purposes of a printing business ? ” and answered, “ I should think that with that amount of land, with that combination of land and water, that $50,000 would be a very low price for it.” The defendant excepted to this question and answer.
The defendant is right in his contention that the damages must be measured by the injury to the fair market value of the plaintiff’s land at the time of the taking; Providence & Worcester Railroad v. Worcester, 155 Mass. 35; Moulton v. Newburyport Water Co. 137 Mass. 163 ; and he is also right in his contention that where similar land is commonly bought and sold, the testimony of a witness, when found by the presiding justice to be competent to testify to its value, should ordinarily be limited on direct examination to giving a direct answer to the question, What is its fair market value, in view of all the purposes to which it is naturally adapted ? Manning v. Lowell, 173 Mass. 100. The defendant is also right in his contention that ordinarily the proper way to qualify a witness as a witness to value of property is to show that he is familiar with sales of similar property and the prices paid therefor. Lyman v. Boston, 164 Mass. 99.
And so when it was proved that the land in question in the case at bar is by nature adapted for use as a mill site for dye-works or for a print-mill, it was proper for the presiding justice in his discretion to allow testimony to be given as to its value for such purposes, by persons who have been shown to be qualified to testify thereto by knowledge thereof derived from experience in that business, though the land was not then used therefor. To exclude such evidence would be to deny to the owner the power of proving the real value of that property; no one can testify to that value by knowledge derived from the sale of lands in the neighborhood; they are not similar lands; nor by sales of mill sites for such purposes, for mill sites are not commonly bought and sold. Evidence of the value of the prop
But such testimony is objectionable as not being directly responsive to the question to be passed, upon by the jury, namely, What is the injury to the fair market value of the property in view of all the purposes for which it is adapted by nature, including the specific purpose testified to, to which it has not in fact been devoted? By reason of its not being directly responsive, and by reason of the land not being in fact devoted to the specified purpose, such evidence raises many issues which, if it were possible, should not be raised. It is also objectionable because it may come as a surprise to the other party, who may have failed to anticipate that the case was an exceptional one, and who for that reason may not be prepared to meet any, but direct, evidence of the market value of the land as shown by purchases and sales in the neighborhood. For these reasons, the usual rule should be departed from and testimony of this kind admitted only when without it it is impossible to prove the value of the property in question.
The defendant also contends that the question which the witness answered was the value of the land as a mill site, independent of the locality, and that such a question is, at the least, inadmissible. But no such question was put to the witness, and there is no reason to suppose that the witness supposed he was answering such a question. Counsel for the petitioner did at one point in the preliminary examination of the witness say to him: “ What I am getting at here is the value of that supply of water in connection with the land — what is the value of that combination ? I mean that value which is independent of the neighborhood which lies behind it. Its value for manufacturing purposes.” But after that question eighteen questions were put to the witness and a discussion by counsel ensued before the court ruled that the witness was- qualified to testify to value and before the question as to the value of the petitioner’s land stated above was put to him. Under these circumstances, we do not think that the question ultimately put could have been understood by the witness as having been qualified by this statement made by the counsel in the preliminary examination.
Exceptions overruled.