220 Mass. 312 | Mass. | 1915
It was held in Wellington v. Cambridge, 214 Mass. 35, that while the petitioner had acquired no right by grant to have vessels anchored at his wharf overlap other wharves bordering on the canal, there was evidence that such right had been gained by prescription. The evidence at the second trial, that for at least twenty-eight years the forward hatches of vessels while unloading coal would overlap the adjoining wharf by more than two thirds of their length, was sufficient to warrant the jury in finding the acquisition of an easement by prescription which did not interfere with any right of the public in navigable waters. Tufts v. Charlestown, 117 Mass. 401. Commercial Wharf Co. v. Winsor, 146 Mass. 559, 562. Wellington v. Cambridge, supra. The respondent’s fourteenth request accordingly could not be given, and the sixth, tenth and twelfth requests in so far as applicable, were covered by the clear, full and accurate instructions, that “if you find that his predecessors in title and he, either jointly or separately, gained this right to overlay by an uninterrupted, open, continuous, adverse use under a claim of right, ac
The failure to give the respondent’s remaining requests as formulated not having been argued, they are to be treated as waived, and the other exceptions to the instructions as saved and argued are confined to the language used by way of illustration in defining the damages suffered by the petitioner arising from the restricted access to the wharf caused by the piling and the northerly abutment of the bridge resting upon land formerly covered by a portion of the wharf and the bed of that part of the canal in which he owned the fee. R. L. c. 48, § 16. St. 1903, c. 372. The jury on abundant evidence could find, that, while vessels at other wharves could be docked and so moved fore and aft as to permit the cargo to be discharged from the first, second or even the third hatch, the petitioner’s wharf had been rendered so inaccessible as to prevent this mode of unloading which he previously had been able to use. It was for the jury to determine the extent of this depreciation, and to assess the damages. Bailey v. Boston & Providence Railroad, 182 Mass. 537, 540. Sheehan v. Fall River, 187 Mass. 356, 361. Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 202 Mass. 585, 598, 599.
A judge in charging the jury may use illustrations to enable them more fully to understand and apply the law governing the case as given from the bench. Commonwealth v. Johnson, 188 Mass. 382, 387. The illustration was apposite, and the language used in defining such damages as distinguished from damages suffered in common with other landowners is not susceptible to the respondent’s criticism that the judge showed that he was biased, but was impartial and unexceptionable.
The reference to this court, of which the respondent complains, did not, when read with the context, exceed the discretionary powers of the judge as to the mode in which the attention of jurors shall be directed to the importance of the questions presented. It is apparent that no rule of law was stated incorrectly, nor the attention of the jury turned aside from the issues which
Nor is there reversible error in the admission of evidence as to the estimated annual cost of trimming coal between the forward and middle hatches to the rear hatch of the barges before they could be unloaded, or that because of the loss of time thus caused the petitioner also would lose the premium paid by the transportation companies for the speedy discharge of cargoes. The jury were to consider any and all uses to which the property could be appropriated profitably, and whether any use to which it could be put was too indefinite and prospective is largely within the discretion of the presiding judge. Maynard, v. Northampton, 157 Mass. 218, 219.
It was held in Pegler v. Hyde Park, 176 Mass. 101, that evidence of the value of plants, flowers and the prepared soil used for greenhouses, and the amount of business transacted, was admissible. And where land with gravel beds was taken, evidence of not only the value of the unexcavated gravel but the cost of transportation, as well as of the market conditions of its supply and demand as merchandise, was said to be admissible in the discretion of the court. Providence & Worcester Railroad v. Worcester, 155 Mass. 35, 41. While loss of business or of good will in the absence of a statute so providing is not an element in the assessment of damages for the taking of property by right of eminent domain, the jury, when the evidence was introduced and later in the charge, were cautioned and instructed that the evidence was to be considered not as showing injury to the petitioner’s business, but solely upon the question of the capacity of his property for the uses for which it was adapted and used at the date of the taking and as affecting its value for future use or improvement. Chase v. Worcester, 108 Mass. 60. Bailey v. Boston & Providence Railroad, 182 Mass. 537. Whiting v. Commonwealth, 196 Mass. 468. It was one way of showing the diminution in value of the property and for this purpose the evidence as limited was admitted properly. Drury v. Midland Railroad, 127 Mass. 571, 582.
The petitioner’s appeal is dismissed and the respondent’s exceptions are overruled.
So ordered.
