210 Mass. 259 | Mass. | 1911
This is a petition
1. Apparently the principal element of value in controversy at the trial related to the quality and quantity of standing wood and timber, and the ease and expense of marketing it as lumber. No evidence was shown to have been offered by the petitioner as a part of his case touching the use of Hopper Brook as a water supply, but a civil engineer called by the respondent as a witness (who did not qualify as an expert on land values) testified on cross-examination that the water could b§ conveyed by gravity to Williamstown, and stated the area of the watershed of the brook, and that part of it was precipitous with a quick flowage. But he gave no definite evidence as to the yield or quality of the brook for a water supply or the suitableness of any land for a reservoir, nor was anything said about the present or prospective need of any town for such a water supply as this source afforded, or the ‘other elements essential to an intelligent consideration whether the market value of the petitioner’s land was affected by the presence of the brook. The presiding judge directed that this evidence be stricken out, for the reason that a full inquiry into the adaptability of the brook for a water' supply would involve matters of which there could be no satisfactory proof, and would be in substance only conjecture, This ruling was well within the principles discussed at length and established in the recent case of Sargent v. Merrimac, 196 Mass. 171, which need not be repeated. See also Maynard v. Northampton, 157 Mass. 218; Lakeside Manuf. Co. v. Worcester, 186 Mass. 552. This is in
2. Touching the brook as an element of value in the real estate, the jury were instructed that its availability as a source of water supply “ should be entirely disregarded ” and that the brook “ is a feature which you have a right to consider if you think it throws some light upon the question of value, on the theory that if there was not a brook there the soil would not be as fertile as it is. You have a right to consider that as one of the features but you have a right to consider it to no other extent, not for any possible use to which the brook might be put.” Considered abstractly, it is plain that this does not state the law. One whose land is taken by eminent domain is entitled to be compensated in money for the fair value in the market of that of which he has been deprived. In ascertaining what that value is, all the uses to which the property is reasonably adapted may be considered. If it is so exceptionally fitted for a municipal water supply and the necessity for such use is so imminent as to add something to its present value in the minds of buyers, that element may be considered. But witnesses and jurors should not be permitted to enter the realm of speculation and swell damages beyond a present cash value under fair conditions of sale by fantastic visions as to future exigencies of growing communities. It is only in those rare instances, when property is of such a nature or so situated or improved that its real value for actual use cannot be ascertained by reference to market value, that the standard of special value may be resorted to. These principles have been stated many times, and are not now open to discussion. Lawrence v. Boston, 119 Mass. 126. Moulton v. Newburyport Water Co. 137 Mass. 163. Sargent v. Merrimac, 196 Mass. 171. Beale v. Boston, 166 Mass. 53. Boom Co. v. Patterson, 98 U. S. 403. In re Gough & Aspatria, Silloth & District Joint Water Board, [1904] 1 K. B. 417. In re Lucas & Chesterfield Gas & Water Board, [1909] 1 K. B. 16.
3. The instruction, to the effect that the value of the land was
Exceptions overruled.
The case was submitted on briefs at the sitting of the court in September, 1911, and afterwards was submitted on briefs to all the justices except Boring, J.
The petition was filed on February 23,1909. The ease was tried before Lawton, J. The jury assessed damages in the sum of $4,024.13; and the petitioner alleged exceptions.