Davenport v. Inhabitants of Hyde Park

178 Mass. 385 | Mass. | 1901

Hammond, J.

The auditor found substantially as in the case of Davenport v. Dedham, ante, 382, that the damage sustained by the alteration of the grade of the street did not differ in kind though it may differ in degree from the damage sustained by the public generally wh‘o may have occasion to use the street, and ruled that for such damage the petitioners could not recover, and found for the respondent. See Davenport v. Dedham, ubi supra.

At the trial in the Superior Court the - petitioners put in the auditor’s report, and Charles E. Davenport, one of the -petitioners, took the stand as a witness. He was asked what effect, if any, the change of grade had upon the view from his house. We think the question was properly excluded. Manifestly the land was too far away to make that a practical question. He was then asked whether the alteration in the grade caused any surface water to flow upon his "land, and after answering “ Not in that way,” he finally said “ Yes.” He was not asked to state to what extent, if any, he was damaged or interrupted in his business, and it is obvious that the real claim of the petitioners was not for a damage by some possible flow of water upon his land one hundred and thirty .feet from where the change of grade began, but was the claim made before the auditor that the change of grade rendered it impossible to haul as heavy loads over it as before. This is shown by the whole course of the examination. 0 The estimates given by the witness of the depreciation of the value of the land all manifestly include this element of damage, and therefore throw no light upon the real question before the jury. The petitioners could have described the amount of the increased flow of surface water upon their land, and the damage, if any, caused by the flow, but no attempt of the kind was made, and we do not think that the evidence introduced was definite enough to control the finding of the auditor.

Exceptions overruled.