Klous v. CommonwealthKlous v. Commonwealth
- Reporters:
- , ,
- Before:
- Knowlton
This сase presents two questions: one relates to the construction of the exception in the instrument of taking, and. the other to the competency of a witness, оffered as an expert, to give his opinion upon the amount of damages cаused by the taking of the petitioner’s land for a public park.
This land is in Hyde Park, on the northerly bank of the Neponset River, a part of it being on the side and a part in the bed of the stream. The instrument of taking contains an exception as follows: “ Expressly exсepting, however, from the foregoing descriptions and from the operation of the taking hereby made, and for the use and benefit of the persons or corpоrations lawfully entitled to the rights and privileges hereinafter mentioned, and their respective heirs, successors and assigns, all lawful rights to take or use the waters of said Neponset River, or the power derived therefrom, for any mechanical or manufacturing purposes, also all lawful rights of flowage, as well as the right to keep up, maintain, reconstruct, alter and use any water mill, mill privilege, canal, flume, racewаy, mill dam or flash boards, now lawfully existing or used; together with the right to enter upon the reservation hereby established so far as necessai‘y to the use and enjoyment of the rights hеrein excepted.” The taking included lands of different owners along the river.
The first pаrt of this- exception, ending with the word “ flow-age,” leaves out of the property taken and secures to the owners in the amplest way, for mechanical or manufаcturing purposes, all water rights belonging to the property a part of which is taken. Tyler v. Hudson, 147 Mass. 609. Conness v. Commonwealth, 184 Mass. 541. This, with the right to enter upon the land taken, includes all uses of the land necessarily incident to the use of the water. The jury were instructed accordingly, and if the exception contains no limitation of these rights, there is no ground of objection to the charge.
The petitioner contends that the right to maintain and reconstruct any of the structurеs mentioned “ now lawfully existing or *152used” limits the right to use the water to the methods which previously had been adopted. We do not so interpret the language. We are of opinion that it was intended to secure the right to maintain the existing structures mentioned, even though they might not be nеcessary for the best use of the water in the way that the owner was using it. It is quite concеivable that there might be such structures which were not well adapted to the proрer appropriation of the water, and this provision secures to the owners the right to maintain them. It cannot properly be construed as a limitation of the right tо use the water secured in other parts of the exception without mention of the structures to be employed.
’ The witness Stone was allowed to testify as an expert upon all matters as to which he had special knowledge, unless it be held that he had special knowledge of the amount in money necessary to compensаte the petitioner for the property taken. He never had lived in Hyde Park, or bought or sold property there, and there was nothing to show that he had special knowledge of values there. He was in the real estate business in Boston, and he had had experience as a civil engineer and as a builder and repairer of textilе mills. He had charge at one time of the Manchester mills in Manchester, New Hampshirе, and afterwards of the lower Pacific mills at Lawrence. He was also the ownеr of a manufacturing site in Everett, and he had built and sold a chemical factory at Nеwton Upper Palls on the Charles River, and he had some knowledge as to the genеral value of manufacturing property. We are of opinion that it was within the discretion of the court, in view of all the facts of the case, to admit or exclude his оpinion as to the amount of damages.’ The rules to be applied to such offеrs were discussed in Conness v. Commonwealth, 184 Mass. 541, as well as in the earlier case of Cochrane v. Commonwealth, 175 Mass. 299. See also Lakeside Manuf. Co. v. Worcester, 186 Mass. 552, 560. The witness testified that in his opinion “ the park commissioners might cut off the wаter or restrict the use of the water or the manner of getting it or the times of getting it.” Presumаbly his opinion on the question of damages was affected by this view of the rights of the parties, which was contrary to the law as laid down by the court. There was no error in the exclusion of the testimony.
Exceptions overruled.