Hall v. Commonwealth

235 Mass. 1 | Mass. | 1920

Braley, J.

The respondent, acting under St. 1915, c. 230, laid out and partially built a State highway in accordance with a plan duly filed in the registry of deeds, and, a strip of the petitioner’s land “ about five hundred and fifty . . . feet long and eight or nine feet wide, with a stone wall running the whole length of it” on the westerly side of the highway having been taken, the present petition is brought for damages under the provisions of R. L. c. 48. The parcel formed part of a vacant tract used for farming purposes which abutted on a dirt road or highway, and the record states that not only was the new highway a “cement road,” but the highway “left the old road” at a point half way between the petitioner’s land and “Norton Center . . . saving about one thousand feet for any one who travelled, from the vicinity of the land taken to Norton Center.”

The petitioner asked the judge to rule, “On all the evidence, there is no evidence of any benefit which can be set off in damages against this petitioner.” The request could not have been given. The jury could find on- the evidence, which included a view, that the new highway afforded more convenient access to, and conferred a frontage on a much better and more desirable road. R. L. c. 48, § 15. It is settled that benefits of this character are direct and special even if all the estates in the vicinity abutting on the street are similarly benefited. Whitney v. Boston, 98 Mass. 312, 314-316. Allen v. Charlestown, 109 Mass. 243, 246. Hilbourne v. County of Suffolk, 120 Mass. 393, 395. Peabody v. Boston Elevated Railway, 191 Mass. 513. The benefit which cannot be set off is confined to "that which comes from sharing in the common advantage and convenience of increased public facilities, and the general advance in value of real estate in the vicinity by reason thereof.” Wells, J., in Allen v. Charlestown, just cited. The petitioner also asked for a ruling, that “ In setting off benefits in the assessment of damages to landowners whose property is taken or injured by laying out a highway, only such benefits are included as are special and peculiar to such property, as distinguished from those which are received from estates generally in the vicinity,” which is taken substantially from Peabody v. Boston Elevated Railway, ubi supra. But no exception was taken to the omission to grant this request. If, as now pressed in argument, counsel were of opinion that although he used the definition requested, yet the judge had failed to make sufficiently clear the difference between general and special benefits, he should have called attention to the matter, and excepted to the instructions if he deemed them not in accordance with the request. Conners Brothers Co. v. Sullivan, 220 Mass. 600.

The exceptions saved at the close of the charge in so far as applicable to the present case recite, “I except to the word ‘all’ as it appears in the third question at the end. Also to the use of the word ‘all’ in the charge in the test of general benefits, as I claim that the test is the benefit to the estates generally in the neighborhood and not to all estates in the neighborhood.” While the judge in his endeavor to make clear a distinction which can be legally formulated with precision although not always easy of application by a jury in the particular case, may have discussed and illustrated the questions of general and special benefits at some length, the use of the word “all,” when the charge is read as delivered, was sufficiently accurate. Hilbourne v. County of Suffolk, 120 Mass. 393, 394. Parks v. County of Hampden, 120 Mass. 395, 396.

The remaining exception is confined to the phraseology of the third question, which with the answer reads as follows: “Did the building and maintenance of the road confer upon the estates in the neighborhood generally a benefit or benefits of a sort common to them all?” The jury answer: “Yes.” The question is appropriately expressed. The use of the word “all” at the end merely emphasizes the inquiry which in effect was whether the benefit was a benefit common to all the neighborhood. Fifty Associates v. Boston, 201 Mass. 585, 591, 592.

It is urged that the petitioner on the entire record is entitled to recover and that there was a mistrial, but, without intimating any opinion, we cannot consider questions apparently not raised at the trial, and the exceptions must be overruled.

So ordered.