100 Mass. 350 | Mass. | 1868
Under the St. of 1864, c. 268, for supplying the city of Salem with pure water, the respondents have taken certain lands of the petitioner, situated on the margin of Wen-ham Pond, and a jury has been summoned and has returned a verdict assessing his damages. Exceptions have been taken by the respondents to some of the rulings of the sheriff.
1. They contend that certain evidence which they offered wa? wrongfully excluded. They offered to prove that the fences which had inclosed thg land were not needed by them, but were put up temporarily and for the benefit of the petitioner; and that he was so informed by the water commissioners at the time they were built, and was subsequently told by them that they would be kept up or removed at his pleasure. They also uroposed to show that they offered the petitioner, by paroi, to put
The first section of the statute authorizes them to take and hold, by purchase or otherwise, such land on and around the margin of the pond, not exceeding five rods in width, as may be necessary for the preservation and purity of its waters; and also to take and hold, in like manner, such lands as may be necessary for erecting and maintaining dams and reservoirs, and for laying and maintaining conduits, pipes, drains and other works, for collecting, conducting and distributing said waters through said city. The third section provides that the mayor of the city, within sixty days after the taking of any of the lands, shall file in the registry of deeds for the county of Essex a description thereof, sufficiently accurate for identifying the same. The tenth section provides that the city shall be liable to pay all damages sustained by any persons or corporations for the taking of any land, &c., and provides for an assessment of damages by a jury.
The taking of the land is effected by filing the description of it in the registry of deeds by the mayor, as provided in the third section. The location of a railroad is an act of a similar character, and the filing of the location is held in such cases to be the taking of the lands. Charlestown Branch Railroad Co. v. County Commissioners, 7 Met. 78. Hazen v. Boston & Maine Railroad, 2 Gray, 574. The document thus filed is conclusive upon both parties, and furnishes evidence which is clear and permanent, like a registered deed. In thus taking the land, the company may reserve to the owner such rights of way or other rights as they may think proper; and the record will show that they are reserved. Such reservations may diminish his claim for damages. But no rights which are not thus reserved will exist. A. paroi assent that he may have a right of way, oi
From this view of their rights, it is obvious that the evidence offered was properly rejected as immaterial.
2. The respondents having offered evidence as to what the petitioner paid for his whole land, he was permitted to show, in reply and in explanation, the circumstances under which he paid it; the condition of the property at the time; and the improvements he had made upon it since the purchase; and to put in evidence the conveyances to him. This evidence was objected to. But the court are of opinion that it was pertinent. In many cases the price paid for land tends to show its value ; and if such evidence is offered, it is equally proper to prove any explanatory facts.
3. The petitioner offered evidence as to the value of the land taken, and situated on the shore of the pond, as an ice privilege. In ■ reply to this, the respondents offered to show, by witnesses acquainted with the subject, the sums for which ice privileges and land to be used for that business had been recently sold, about the time of the taking of the land in question, in Peabody and Lynn. The ponds in these places are seven or eight miles from the pond in question. This evidence was rejected. In respect to such evidence much must be left to the discretion of the presiding officer. Shattuck v. Stoneham Branch Railroad Co. 6 Allen, 115. Considering the distance between these ponds, and the importance of locality in fixing the value of an ice privilege, we think the officer decided properly in rejecting
These are all the questions that have been argued before us.
Exceptions overruled, and verdict accepted.