New York, New Haven, & Hartford Railroad v. Blacker
178 Mass. 386
Mass.
1901
Check Treatment
Loring, J.

1. The respondent’s exception to the ruling in favor of the petitioners’ contention is not well taken. Their contention was that, in assessing the damages to the petitioners’ remaining land, regard should be had to the premises as they *390were situated on May 7, 1897, the date of the decree confirming the report of the commissioners changing the grade of the crossing in question, and “taking into consideration as affecting their market value the railroad facilities as they then existed, but with the possibility of the discontinuance of the spur tracks by the railroad.”

This ruling is in accord with well settled principles. Maynard v. Northampton, 157 Mass. 218. The fact that this land was situated on the line of the railroad and at a level with it, so that spur tracks could be (as they were) built running on to it, made it valuable for any business which could be economically carried on by having freight delivered to it directly from the cars without the expense of handling and carting. That was an element which in fact gave, or might have given, value to this land, and which could properly be considered in determining what the fair market value of it was. If the respondent were right in its contention that this fact could not be considered because the petitioners had no legal right to have the spur tracks continue, the fact that a lot of land is in the business portion of a city or town in place of in the residential or other less valuable portion of it, could not be taken into consideration in determining its market value; the owner of a lot of land in the business centre of a city, has no legal right to have the business of the city done in that neighborhood; but the fact that it is done there, and is likely to continue to be done there, is a fact which affects the market value of the land. ' Instances, where circumstances, which exist, but which the owner has no legal right to have continue to exist, have been taken into account in determining the market value of land, are common. Shattuck v. Stoneham Branch Railroad, 6 Allen, 115. Eastern Railroad v. Boston & Maine Railroad, 111 Mass. 125. Marsden v. Cambridge, 114 Mass. 490, 492. Williams v. Taunton, 125 Mass. 34, 41. Drury v. Midland Railroad, 127 Mass. 571. Moulton v. Newburyport Water Co. 137 Mass. 163. Providence & Worcester Railroad v. Worcester, 155 Mass. 35, 42. Fales v. Easthampton, 162 Mass. 422.

The value given to the land by its being next'to the railroad and on a level with it was not affected by the passage of the grade crossing act, St. 1890 c. 428, which rendered it probable that the grade would be changed by the exercise of the power of *391eminent domain, Benton v. Brookline, 151 Mass. 250, nor is it material that under the statute the respondent railroad, which could have removed the spur tracks without making compensation to the petitioners had it desired to do so for business purposes, has to pay sixty-five per cent of the damages of the changes of grade. It was found by the court that “ There was no evidence that the discontinuance of these spur tracks was contemplated by the railroad company except as required by the execution of said decree” for changing the grade of this crossing. The change which has been made was not made by the railroad for its own purposes, but was ordered by the public authorities for the convenience and safety of the public. The fact that the Legislature has in its discretion apportioned part of the expense of making this public improvement on the railroad is an accident which is of no consequence in this connection.

2. The exceptions taken by the petitioners were not well taken. They excepted to the rulings that they were not entitled to recover (1) the cost of moving the contents of the building which was cut off by the taking, or (2) the damages which they sustained from waste in handling the coal which had to be moved, or (3) the damages caused by the necessary interruption of their business.

On the findings entered in the report we take it to be the fact that the petitioners did suffer these" damages, and it must be admitted that such damages are damages which have been suffered by the petitioners from the fact that the land and buildings taken were taken. Whether these damages can be recovered or not depends upon this: Are the damages which can be recovered limited to the land taken or injured by the taking on the one hand, or on the other hand do they extend to and include all consequential damages suffered from the taking ? In the case of Patterson v. Boston, 23 Pick. 425, where the front of the plaintiff’s store was cut off by widening a street, Chief Justice Shaw instructed the jury that the plaintiff was entitled not only to the expense of moving the goods in the store to a place of safety while a new front was being put up, and of moving them back when the new front of the store was finished, but also to the loss of profits or to the rent of another store while the work was going on. In this court the plaintiff’s right to the expense of moving the goods and *392of bringing them, back was admitted, and the loss of profits or the expense of the rent of the other store was contested ; it was held that the plaintiff was entitled to either the loss of profits or the rent of another store, according as one or the other was the best method of conducting the business; and in Brooks v. Boston, 19 Pick. 174,177, a case where a street was widened on its southerly-side, it was said that it might be that the owner of a store on the northerly side could recover damages for the loss in his business if he could connect it with the interruptions caused by the widening of the street. These cases were cited'with approval in Penney v. Commonwealth, 173 Mass. 507; but that case was a case of injury to property as distinguished from consequential damages sustained from property being taken; and so was the case of Dodge v. County Commissioners, 3 Met. 380, also relied on by the petitioners. Brooks v. Boston cannot now be regarded as authority (see Rand v. Boston, 164 Mass. 354) and the later cases have established the rule that consequential damages are not within such statutes. In Edmands v. Boston, 108 Mass. 535, it was held that the cost of moving away goods which were in a store when a portion of it was taken in widening a street, to a place of safety while the necessary repairs were being made, and the cost of bringing them back, could not be recovered; and that the lessee of the store could not recover damages for loss of good will of his business. See p. 549. And in Williams v. Commonwealth, 168 Mass. 364, it was held that a life tenant who had been at certain expense in making the premises taken adapted to his business of a dentist, but which it was admitted did not increase the market value of the premises, could not recover for the damages so suffered by him, and on the ground that they “ cannot be regarded as an element of damage, any more than the loss of good will would be.” The ‘same general rule is recognized in Maynard v. Northampton, 157 Mass. 218, 219, and in Butchers’ Slaughtering & Melting Association v. Commonwealth, 169 Mass. 103, 118, 119.

We have not referred to the particular wording of the statute in question, St. 1890, c. 428, § 5, amended by St. 1891, c. 123, although it bears out this conclusion by the use of the phrase “ all damages sustained by any person in his property by the taking of land ”; that this clause of the section and not the *393clause at the end of it is decisive of its construction see Rand v. Boston, 164 Mass. 354. The question is a general question of construction, and though the result reached is enforced by the phraseology of this act, the same result has been reached in the cases cited above dealing with statutes where the phraseology is somewhat different.

Exceptions overruled.