| Mass. | May 20, 1897
The character of the improvements does not appear very clearly from the petition, or from the agreed facts. Some things which the petitioner did, the putting in of the bay windows, for instance, must have constituted a part of the realty, and as such must have been included in the market value, though it is agreed that they did not enhance it. To allow the petitioner damages, therefore, on account of them, would be compelling the Commonwealth to pay twice, which no construction of Pub. Sts. c. 49, § 27, on which the petitioner relies, would justify. So far as the improvements come within the description of fixtures, they also, as between the Commonwealth and the parties owning or interested in the land and building, must be regarded, till severance at least, as part of the real estate. Edmands v. Boston, 108 Mass. 535" court="Mass." date_filed="1871-11-15" href="https://app.midpage.ai/document/edmands-v-city-of-boston-6416707?utm_source=webapp" opinion_id="6416707">108 Mass. 535, 549. Allen v. Boston, 137 Mass. 319" court="Mass." date_filed="1884-06-26" href="https://app.midpage.ai/document/allen-v-city-of-boston-6421350?utm_source=webapp" opinion_id="6421350">137 Mass. 319. Lewis, Eminent Domain, § 488.
There is nothing to show that they have been severed, or that they were not included in the taking. If they were included in the taking, then, of necessity, they must form a part of the market value of the land and building taken, and the petitioner gets all that he is justly entitled to, under the statutes or otherwise, when he receives the income of property whose value has been arrived at by taking them into account, though they may not have been regarded as enhancing it. So far as they consist of personal property, damages are not to be assessed for losses occurring in respect to them in consequence of the taking. Edmands v. Boston, ubi supra. We do not find it necessary to determine the meaning of the phrase “ Damage special to a separate estate therein,” in Pub. Sts. c. 49, § 27.
As the case stands, we think that the judgment should be affirmed, and it is
So ordered.