221 Mass. 169 | Mass. | 1915
The single question presented by these exceptions is whether the petitioners can recover damages for injury to the prospect from their land and dwelling by reason of the construction of a railroad embankment in connection with the abolition of a grade crossing.
The petitioners owned a parcel of land with a house and stable thereon situated on the easterly side of Mill Street in the Dorchester district of Boston. Westerly of Mill Street, on land somewhat lower in grade than the petitioners’ land, ran the respondent’s tracks, crossing Mill Street at grade about two hundred and thirty feet away, and being at its nearest point across Mill Street and the .land of other owners about two hundred feet from the petitioners’ estate. The Mill Street crossing at grade was eliminated by proceedings under the grade crossing abolition act. As a result, certain land of other persons about two hundred feet or more from that of the petitioners was taken, the railroad was elevated sixteen and one half feet at a point opposite the petitioners’ estate, bringing the grade of the tracks about on a level with the knob of the petitioners’ front door, four tracks were constructed in place of two, the nearest one being thirteen feet nearer to the petitioners’ estate than either of the two existing before. Now the shortest distance between any part of the petitioners’ land and the respondent’s location is about one hundred and sixty feet. The abutments of the bridge on which the tracks were carried over Mill Street obstructed the view of that street from the petitioners’ house, while the prospect in front is affected to the extent that a pond and other country nearby are cut off by the embankment.
It was held in Hyde v. Fall River, 189 Mass. 439, that a landowner might recover for damages suffered in consequence of changes in
The essential words of the governing statute, which in this respect have not been changed since R. L. c. Ill, § 153, are in St. 1906, c. 463, Part I, § 37, as follows:
“All damages which may be sustained by any person in his property by the taking of land for or by the alterations of the grade of a public way, or by an abutter thereon by the discontinuance of such public way, to the same extent as damages are recoverable by abutters on ways discontinued by towns, or by the taking of an easement in land adjoining a public way, shall primarily be paid by the city or town; and all damages which may be caused by the taking of land for the railroad or by the change or discontinuance of a private way, or by the taking.of an easement in land adjoining a private way or a railroad location in connection with the abolition of a grade crossing shall primarily be paid by the railroad corporation; and all damages which may be sustained by any person by the abolition of private ways, except as hereinbefore provided, shall be entirely paid by the railroad corporation.”
The precise effect of the decision of Hyde v. Fall River, 189 Mass. 439, in connection with Rand v. Boston, 164 Mass. 354, relates to the interpretation of the statute as to the extent of damages recoverable under the grade crossing abolition act. It was said by Holmes, J., speaking for the majority of the court in Rand v. Boston, that “The question is simply one of construction. The operative words here are narrower than those just quoted from the Public Statutes as to ways and sewers, [c. 49, § 16, now R. L. c. 48, § 15,r regard shall be had to all the damages done to the party, whether by taking his property or injuring
It follows that in assessing the damages occasioned by railroad constructions in connection with a grade crossing abolition, the rule of damages established by the general railroad law for assessing damages by the construction of railroads is to be followed.
It has been settled by a long series of decisions that a landowner may recover compensation for actual and real damage to property arising from the laying out, construction or maintenance of a railroad, capable of being pointed out, described and appreciated, although no part of his land has been taken. Dodge v. County Commissioners, 3 Met. 380. Ashby v. Eastern Railroad, 5 Met. 368. Parker v. Boston & Maine Railroad, 3 Cush. 107, 113, 114. Babcock v. Western Railroad, 9 Met. 553, 555. Brown v. Providence, Warren & Bristol Railroad, 5 Gray, 35. Curtis v. Eastern Railroad, 14 Allen, 55. Sheldon v. Boston & Albany Railroad, 172 Mass. 180. Whitney v. Commonwealth, 190 Mass. 531, 533.
A review of some of our decisions in which claims for damages have been disposed of adversely will afford assistance in reaching a just conclusion respecting the petitioners’ contentions. In Presbrey v. Old Colony & Newport Railway, 103 Mass. 1, a landowner sought damages for the depreciation of land which for the purposes of that case was ruled to be outside but adjoining the location of the railroad, arising from proximity to the railroad, such as for frightening horses and like causes, and the annoyance and inconvenience arising from the laying of the track and the frequent passing of trains; and it was said by Wells, J., “When the injury complained of consists only in annoyances, as by the 'frightening of horses and such like causes,’ whether by crossing streets or passing near to private avenues or land, it is not such a direct and appreciable injury to the land or the landowner as to constitute, of itself, a ground for the recovery of damages; although it may make the land less desirable for some purposes, less saleable, and thus depreciate its market value.” In Walker v. Old Colony & Newport Railway, 103 Mass. 10, it was said at page 15, respecting a landowner’s claim of damages for depreciation arising from the proximity of the railroad and from the running of trains: "If
These decisions seem to be decisive against the petitioners’ claim in the case at bar. We are unable to distinguish in prin
The present case does not call for a determination that no circumstances can arise which would warrant the recovery of damages under a statute similar in terms to the one here controlling for the obtrusion of ugly structures into a fine prospect. When cases approach close to the line, decision becomes difficult. But we are of opinion that the interference with view shown by the facts here disclosed does not reach to a special and peculiar dam
Exceptions sustained.