164 Mass. 354 | Mass. | 1895
The only question argued in this case is whether damages can be recovered under Sts. 1890, c. 428, and 1891, c. 123, for diminishing the market value of the petitioners’ land, obstructing its light and air, and occasioning dust to be blown upon it, by building an embankment and bridge upon land taken from a third person on the opposite side of the street from the petitioners’ land.
It will be observed that, if any other owner of the land had done the acts complained of, he would have had a perfect right
So far as there is any general tendency or principle of construction to be gathered from the decisions, while damages which the common law would not allow have been held in some cases to be given by general words which probably would have been construed more narrowly in England, (Woodbury v. Beverly, 153 Mass. 245, see Stanwood v. Malden, 157 Mass. 17,) still, here as well as in England the tendency is well settled to deny damages like the present unless some land of the plaintiff is taken. Presbrey v. Old Colony Newport Railway, 103 Mass. 1. Walker v. Old Colony Newport Railway, 103 Mass. 10, 14. Fay v. Salem Danvers Aqueduct, 111 Mass. 27, 28. Johnson v. Boston, 130 Mass. 452, 454. Sawyer v. Davis, 136 Mass. 239, 242. Wellington v. Boston Maine Railroad, 158 Mass. 185, 189. Taft v. Commonwealth, 158 Mass. 526, 548, 549. Titus v. Boston, 161 Mass. 209, 211. In re Stockport, Timperley, & Altringham Railway, 33 L. J. (N. S.) Q. B. 251. Cowper Essex v. Local Board for Acton, 14 App. Cas. 153. See also Benton v. Brookline, 151 Mass. 250, 260. It is true that when land is taken such damages sometimes can be recovered to a certain extent. The grounds for the exception are discussed in Lincoln v. Commonwealth, post, 368. But the difficulty, if there is one, is to justify the exception in the form which it has taken, rather than the rule; and it seems to us putting the cart before the horse to start from the exception, and to argue that, if such damages are allowed to any extent under any circumstances, they ought to be allowed to their full extent and always.
The language of the statute before us, so far as material, is: “All damages sustained by any person in his property by the taking of land for, or by the alteration of the grade of, a public way . . . shall primarily be paid by the city or town.” St. 1890, c. 428, § 5. St. 1891, c. 123, § 1. These are the words
Judgment on the verdict.
I regret that in this case I am unable to agree with the majority of the court.
The dwelling-houses and building lots of the petitioners have been very greatly diminished in value by the taking of a strip of land along the line of the street on the opposite side, and the location upon it of a way which crosses over the railroad on a bridge. The petitioners’ property, which was situated at a con
In my view of the case, the question is whether one who has suffered substantial damages in his property by the taking of land for a public way is entitled to damages if no part of his land is taken. The Pub. Sts. c. 49, § 16, provide that, “In estimating the damage sustained by laying out ... a highway . . . regard shall be had to all the damages done to the party, whether by taking his property or injuring it in any manner.” The provision in regard to damages for laying out, making, and maintaining a railroad, although in different language, is in substance the same. Pub. Sts. c. 112, § 95. The statute giving damages for a change of grade, or other work done in making repairs upon a way, differs from these in limiting the compensation to owners of land adjoining the way. Pub. Sts. c. 52, § 15.
Our statutes upon this subject were enacted many years ago, and their language seems to me to show that the Legislature intended to make this last liberal provision for landowners. These acts received a very early interpretation. Whenever they have been discussed by this court, they have been treated as designed to give compensation to every one whose property is
The authorities seem to me to forbid such an unjust discrimination. In Dodge v. County Commissioners, 3 Met. 380, the plaintiff owned a lot of land no part of which was taken by the railroad company, but it was held that he was entitled to damages under the statute for injury to a building upon the lot done by blasting a ledge of rocks in the construction of the railroad. In Ashby v. Eastern Railroad, 5 Met. 368, it is said that “ parties interested in land, not taken for a railroad, but so near as necessarily to be damnified by it, are entitled to damages.” In Parker v. Boston & Maine Railroad, 3 Cush. 107, it was held
The rule of damages to be applied in these and similar cases was stated by Chief Justice Shaw in Proprietors of Locks & Canals v. Nashua & Lowell Railroad, 10 Cush. 385, 391, in these words: “ All direct damage to real estate, by passing over it, or part of it, or which affects the estate directly, though it does not pass over it, as by a deep cut or high embankment, so near lands or buildings as to prevent or diminish the use of them; by endangering the fall of buildings, tile caving in of earth, the draining of wells, the diversion of watercourses, so far as these are the necessary results of suitable and proper works, to accomplish the enterprise and secure the public easement, which is the object of the charter. Also, as being of like character, the necessary blast
The damages which are excluded from consideration are, first, those that are remote and consequential, and, secondly, those that affect the public generally, as distinguished from those that are direct, special, and peculiar. Damages for discontinuing a way are allowed under the statute which provides damages for laying out a way. Pub. Sts. c. 49, §§ 14, 16. But damages are not allowed if the land does not abut on the portion of the way discontinued if there is access by any public way, because in such a case the damage suffered is only from loss of the enjoyment of a public right which is also suffered in greater or less degree by every member of the community. Davis v. County Commissioners, 153 Mass. 218. Hammond v. County Commissioners, 154 Mass. 509. So in setting off benefits, only those that are direct and special, as distinguished from those that are general, are allowed. Allen v. Charlestown, 109 Mass. 243, 246. Cross v. Plymouth, 125 Mass. 557. Parks v. Hampden, 120 Mass. 395. Under the betterment act benefits are assessed upon estates no part of which is taken for the improvement for which the assessments are made, as well as upon others. Pub. Sts. c. 51, § 1.
It seems to me that no one reading the cases above cited can doubt that at the time of the decision in Walker v. Old Colony & Newport Railway, 103 Mass. 10, it was the settled law of this Commonwealth that direct and special damages to land from the location or construction of a railroad or highway might be
I do not think that either of these propositions has ever been adjudicated by this court, and I do not know of more than one or two decisions in which it can reasonably be contended that either of them was involved. There are cases in which they have been assumed in the opinion to be correct, and have been repeated, but never with any discussion of the earlier authorities. I do not think the court, in Walker v. Old Colony Newport Railway, intended to overrule the former decisions without referring to them. That there was no such intention seems certain when we notice that the judge who wrote the opinion in that case wrote also the opinion in the later case of Marsden v, Cambridge, ubi supra, reaffirming the earlier decisions. Nor do I think that there has been any such repetition of these dicta as should be held to have changed the policy of the Commonwealth in regard to the assessment of damages in such cases. I prefer to hold that these equitable principles, applied and fully reaffirmed in the late case of Trowbridge v. Brookline, 144 Mass. 139, are still the law that should govern us.
As I understand the fundamental principles, the taking of land for a highway or a railroad involves, first, the acquisition of the title, and, secondly, the appropriation to a use. Damages caused by the taking considered merely as the acquisition of a title concern only those whose land is taken. Damages caused by an appropriation to a use concern everybody to whose property a direct and special detriment is caused by the use. Damages of the first class include not only the value of the land considered by itself alone, but, as I have already pointed out, its value for use in connection with that from which it is taken, as affecting its size and shape.
Damages caused by the use to which the land is to be put are entirely apart from the mere change of title. They are allowed because the use causes detriment to property owners in the vicinity. Of course only those owning land near the road can be so affected in. their property, but if one is so affected he
It is important to decide cases, so far as possible, upon principles of general application. It would be possible to hold in these cases that no damages are ever to be allowed that are caused by such a use as might lawfully be made by an individual proprietor. But it has never been so held in this Commonwealth, and there are many cases to the contrary. It might be held that damages from the use should always be allowed to persons who are also paid for a title, and not to any others. But this would be an arbitrary and unjust rule which is in conflict with our decisions. It might be held that certain kinds of damage shall be allowed whether the petitioner’s land is taken or not, and that damage of certain other kinds, although direct and special and greater in amount, shall never be allowed. But I know no warrant in law or justice for such a rule, and among the kinds of special and peculiar damage which are real and substantial I know not what should receive favor and what should be rejected. I think it can make no difference in law whether the effect of an injury is felt above or below the surface of the ground, — whether it comes from blasting a ledge of rocks, as in Dodge v. County Commissioners, or from draining a well, as in Parker v. Boston & Maine Railroad.
If a foot in width of the petitioners’ land had been taken, and a high embankment had been built along the front of their houses and lots, there is no doubt under all of the authorities that the damage to their property caused by the embankment would be allowed them, although an adjacent individual owner might have built it upon his land without liability. If the embankment had been built upon the street without taking any land, full damages would have been allowed for the change of grade. Pub. Sts. c. 52, § 15. I know no good reason why the distance of a few feet between the property of the petitioners and the embankment should affect their rights otherwise than to diminish the amount that should be allowed them.
I am authorized to state that Mr. Justice Morton concurs in this opinion.