158 Mass. 21 | Mass. | 1893
The question principally discussed in this case is how to apply the rule for the estimation of damages for
An owner of land' taken by right of eminent domain is to be compensated by the payment of the fair value of it at the time of the taking. Ordinarily the price at which such land will sell in the market, if there is a market for it, is the criterion by which to make the estimate. But in certain cases the market price is not the true standard by which to determine the value. By the Pub. Sts. c. 51, § 3, it is provided that in laying out, altering, or widening highways, “the damages for land taken shall be fixed at the value thereof before such laying out, alteration, or widening.” In the present case the damages are to be estimated as in cases of laying out, altering, or widening highways. St. 1875, c. 185, § 5.
It was evidently the purpose of the Legislature not to permit landowners to recover damages for the land taken for a public use at a value enhanced by a public improvement which owes its existence to the change of use of the very land which is to be paid for. Land taken is to be paid for at its value. Its value is to be determined by a consideration of the uses to which it is adapted. Its market value cannot legitimately be founded on anything else. It may have a market value largely dependent on a probable future demand for it; but that which is relied on ultimately to create the demand is the valuable uses to which it can be put. Whenever there is an expectation of a public improvement, the market price of land in the vicinity is likely to advance, in anticipation of the more valuable uses to which the land can be put when the improvement is made. Its real value for use is not increased until the change in its surroundings comes. If the expected improvement involves the taking of land by the right of eminent domain, the value of the land taken will never be enhanced by the improvement, for the taking precludes the possibility of ever using it under improved conditions. In that respect it stands differently from other land in the vicinity which is not taken. Whenever there is a project for laying out or widening a way, or taking land for any other public use which is expected to increase the value of real estate in the neighborhood, if the market price of land in
The land of the petitioners was taken for a public park. There was evidence tending to show that the contemplated laying out of a park in this neighborhood, and general knowledge that a park was likely to be laid out, enhanced the value of the remaining land of the petitioners, including that taken on April 30, 1890.
The evidence of a printed report of the park commissioners, containing a recommendation of their advisory landscape architect, was rightly excluded. The recommendation to the board made in 1880 was too remote to be admitted as evidence that the project for a park had taken definite form previous to 1890, such that the enhanced value of land in the vicinity was founded on a settled plan which did not include the petitioner’s land, and which had ceased to have indefinite features, under which their land was liable to be taken and paid for at a value
We discover no error in the refusal of the presiding justice to give the instructions requested, or in the instructions given. The fourth request for instructions would have been correct, as applied to a case in which it appeared that there was a definite and settled plan for laying out a defined park which did not include the land taken from the petitioners, and that the taking of the petitioners’ land was for a new and different public improvement. By the evidence, so far as it is reported in this case, the whole proceedings related to a single improvement, which had not been carried out, and the details of which had not been settled before the petitioners’ land was taken. We do not find in the bill of exceptions any evidence that the increase in value of the land prior to the taking was founded on a contemplated laying out of a park whose lines were fixed, so that changes could not reasonably be anticipated as possible, and we are of opinion that the jury could not have found, on any evidence disclosed in the bill of exceptions, that the increase referred to was on account of any other plan than the general originally indefinite plan under which the petitioners’ land was finally taken.
The fifth and sixth requests for instructions were rightly refused, because the “ likelihood that a public park was to be constructed adjoining, but not including,” the land taken from the petitioners, did not exclude the possibility, that when the scheme was carried out by locating the park on the land, it would include this land, in which case it would be paid for at its value without increase from the improvement. The instructions given upon the principal questions in the case were in accordance with the views we have expressed. The presiding justice was also right in ruling that the provision in regard to the way sixty-five feet wide on the land previously conveyed by the petitioners was a condition a breach of which would work a forfeiture, and not a restriction enforceable in equity.
It was within the discretion of the court to exclude the testimony of the witness Chandler. It does not appear that the
Exceptions overruled.