181 Mass. 374 | Mass. | 1902
The exception to the refusal to allow the petitioner to show that in the opinion of a witness the price at which an adjoining parcel of real estate had been sold about January 1, 1900, was affected to the detriment of the vendor by the passage of St. 1898, c. 452, must be overruled. While the price at which the adjoining land had been sold was competent, an inquiry into the considerations determining the price would open a collateral investigation which the presiding judge properly might exclude from the consideration of the jury. Old Colony Railroad v. F. P. Robinson Co. 176 Mass. 387.
The other exceptions are to the refusal of three requests for instructions and to the charge so far as it was inconsistent with the requests. The requests were these: “ First. That by Chapter 452 of the Acts of 1898 the property rights of the plaintiff were taken for the benefit of the public for which the plaintiff was entitled to some compensation. Second. That Chapter 452 of the Acts of 1898 put the burden of an easement upon the
The charge allowed the jury to find damages for the petitioner by the operation of the statute. It was mot the law that the petitioner was entitled at all events to recover a verdict for some damage or compensation for her property rights taken or the burden of the easement imposed on her property by the statute. Damages or loss in property sustained by any person by reason of the operation of the statute are to be recovered in the manner prescribed by law for obtaining payment for damages sustained by any person whose land is taken on the laying out of a highway. St. 1898, c. 452, §§ 3, 4. This means that the damages to be awarded are the value of the property taken and of resulting damages if any to the remaining property not taken, less the amount of the special and peculiar benefit if any to the remaining property from the operation of the act. Cross v. Plymouth, 125 Mass. 557. Abbott v. Cottage City, 143 Mass. 521, 526. If the special benefit equals or exceeds the amount of damages ascertained by this rule the landowner is not entitled to a verdict for damages. Each of the requests was refused properly because inconsistent with this rule. The petitioner concedes in substance that special benefits could be offset and contends that no special benefits were shown. But there was evidence tending to show that the petitioner’s estate did receive a special benefit by the limitation of the height of buildings by the act, in the taking away of the possibility that buildings upon her narrow lot in the interior of the block between two side streets entering Boylston Street, and having the right to light and air only from that street and the alley in the rear, should be deprived of light and air by other buildings exceeding the limit of height prescribed by the act. The amount of this special benefit was for the jury.
It is true that the charge did not state the rule for the assessment of damages with fulness. But the exception to the charge was only so far as it was inconsistent with the requests. If the petitioner desired explicit instructions as to the set-off of benefits she should have requested them, or at least called the attention of the presiding judge to that matter and to the contention now
Exceptions overruled.
