Wyman v. Lexington & West Cambridge Rail Road

Dewey, J. It has become necessary, in the decision of this- and other cases before us, arising upon proceedings in relation; to claims for damages for injuries sustained by the location of' rail roads, to decide as to the construction of the statute of the Commonwealth regulating the proceedings upon a petition for a jury to assess such damages. The right to a jury in such cases is given to either party who may be dissatisfied with the estimate made by the county commissioners, by the Rev. Sts. c. 39, § 57, wherein it is provided that, upon such petition being presented, “ the like proceedings shall be had — 322 — thereon as are provided in the twenty fourth chapter, for the recovery of damages for laying out highways.” This provision is to be kept in mind throughout this whole inquiry. The Rev. Sts. c. 24, regulate the proceedings in such cases, upon a petition for a jury to assess damages occasioned by the location of a highway. Section 18 requires that the warrant, in such cases, “ shall be directed to the sheriff of the county, or his deputy who is disinterested, or to a coroner, requiring him to summon a jury of twelve men to hear and determine the matter of complaint.” Section 19 enacts that “ the officer who receives the warrant shall in writing require of the selectmen of the three nearest towns not interested in the question to return a number of jurors, not less than two nor more than six.” 1. One point, arising upon § 19, is as to the true construction of the provision as to the towns from which the jurors are to be selected. Is the town, in which the land that is the subject of the claim for damages is situate, to be included as one of the three towns from which jurors are to be selected, or is it to be excluded ? The language of the statute is not definite or precise upon that point. It is a case where we are called upon to give a construction to general language of the legislature, and, as far as possible, we are to give effect to the legislative will. The earliest statute on this subject, that of 1786, c. 67, § 4, was very general, giving the party a right to a hearing before a jury “ to be summoned by the sheriff or his deputy; ” making no provision as to the towns from which they should be selected. The next statute in the order of time (St. 1802, c. 135, § 1) provided that the jury in such cases should be drawn from “ two or more disinterested towns in said county.” This was followed by the St. 1827, c. 77, § 12, wherein it was provided that “ such jury shall, in all cases, consist of twelve persons, and no more than three persons shall be taken from any one town,” &c. To this have succeeded the Rev. Sts. c. 24, § 19, already cited. The practical effect of the earlier statutes was, to exclude the town where the land, which was the subject of inquiry, — 323 — was situate; as such town was, under the earlier course of legislation., interested in the result, whether it was a question of the location of a road, or the assessment of damages. Hence such town would necessarily be excluded. But under more recent statutes, the damages awarded to the owners of lands are chargeable sol'.ely upon the county, and in the mere matter of such damages the town may have no pecuniary interest. We believe, however, that the practice has always been to exclude the town, in which the laud is sit. ate, from the list of towns from which a jury is to be summoned to assess damages to the landholder. By the provisions of the revised statutes, not only the proceedings on the subject of damages, by reason of the location of rail roads, is made to correspond with those of c. 24, in relation to highways, but similar provisions exist with regard to damages occasioned by the location of turnpike roads; Rev. Sts. c. 39, § 3; and also in relation to damages occasioned by the erection of mills. Rev. Sts. c. 116, § 13. As to the latter subject, the St. of 1814, c. 173, which was in force at the time of the enactment of the revised statutes, very clearly excluded the town in which the land was situate, in the selection of towns from which a jury was to be summoned. That provision required the jury to be taken from “ the three towns nearest to that in which the land injured is situated.” We now find, as already stated, these various cases of claims for damages, all regulated by one provision, that of Rev. Sts. c. 24. Considering the practice so long prevailing, the provisions actually existing at the time of enacting the revised statutes, excluding, by direct words, the town in which the land was situated, in the case of water mills, and seeing no sufiicient evidence of change of purpose, in this respect, in the revised statutes, and nothing in the language of the present existing laws, which requires a different construction, we are of opinion that “ the three nearest towns ” from which a jury is to be summoned, are the three towns nearest to that in which the land is situate, and exclusive of such town. A — 324 — jury summoned in part from the town in which the land lies, that is the subject of damages, would therefore be irregularly summoned, and if seasonably objected to, their verdict would be set aside for that cause. [See post. 327, note.] 2. The next question arising is as to the mode of proceeding where two or more persons apply at the same time for several damages for injury occasioned by the same highway or rail road. Shall the warrant for a jury, in such cases, be several or joint ? Upon this point, the statute seems to be entirely explicit. By Rev. Sts. c. 24, § 15, “ if two or more persons shall apply at the same time for joint or several damages, they may join in the same petition to the commissioners; and if several applications shall be pending at the same time before the commissioners, for a jury to determine any matter relating to the laying out, alteration or discontinuance of a highway, or the assessment of damages, the said commissioners shall cause all such applications to be considered and determined by the same jury.” The proper course is, therefore, for the officer to summon but one jury for the various cases. Such warrant to the sheriff from the county commissioners should, more properly, be a single warrant, reciting all the cases to be heard by the jury. Separate warrants, however, embracing various cases of claims for damage caused by the location of the same rail road, acted upon by the officer, as a joint warrant, in all the subsequent proceedings, and heard by the same jury, would not be so far objectionable as to require us to set aside a verdict for that cause. 3. Upon the question of summoning the jury, where the lands of several petitioners for a jury are situate in different towns, or where the lands of a single petitioner are situate in different towns, the court are of opinion that the rule must be that of a selection of jurors from three towns nearest the town in which the land of either of the petitioners is situate or, in case of a single petitioner, from three towns nearest to either of the towns in which his lands are situate, would be a mifficient compliance with the statute. This is all that is — 325 — practicable; and the provision of § 15, above cited, requiring all petitions that are presented at the same time to be sent to the same jury, can only be carried into effect in this way. 4. As to the proper mode of giving notice to the jurors, after they have been drawn by the selectmen of the several towns, it has been contended that the only proper mode of notifying them is by a notice by a constable. This position is supposed to be warranted by the provisions of Rev. Sts. c. 24, § 19, requiring that “the jurors shall be drawn, summoned and returned as in other cases.” Taking this provision alone, and referring to c. 95, §§ 15 —17, regulating the summoning of jurors for the regular terms of the higher courts, it would seem to provide for a notification to the jurors by a constable. No such provision existed in the earlier statutes on this subject, and the practice under them is understood to have been different. Looking at various other sections of c. 24 of the Rev. Sts., they are found strongly to indicate a different mode of proceeding. By § 18, the warrant is to issue to the sheriff, “ requiring him to summon a jury.” By § 28, “ the officer, by whom any such jury shall be summoned, shall give seasonable notice of the time and place of their meeting to the person appointed to preside at the trial, and also to the person appointed as agent for the county,” &c. By § 29, “ the officer shall receive, for summoning the jurors, four cents a mile for all necessary travel, and one dollar and fifty cents for each day that he shall attend upon them.” The officer referred to in these sections is the sheriff or his deputy, and not a constable. See also § 21 In c. 95, on the other hand, the venires or requisition for jurors are to be served upon the selectmen by a constable, and all the proceedings are by a constable. The court are of opinion that the law well authorizes the summoning of the jurors, in rail road cases, by the sheriff or his deputy; and that it is no objection to the regularity of the proceeding, that the jurors were not notified by a constable. We do not mean to intimate that a notice to the jurors, by a constable, and an attendance by them in pursuance of such — 326 — notice, all the proceedings being regular, would vitiate the verdict. However that may be, we are satisfied that a notification to the jurors, by the officer to whom the warrant is directed, is good and sufficient in law. 5. The further questions in this case arise upon the ruling of the presiding officer, upon the admission of evidence. In relation to the evidence which was admitted as to the price paid by the rail road corporation for the adjacent lot, we think it was competent. This was evidence of a fact, and not of an opinion. The price for which other adjacent lots had been actually sold was admissible, open of course to any evidence explanatory of the circumstances attending such sale, and tending to show why the purchasers gave a price greater than the true value of the land. If it had been a price fixed by a jury, or in any way compulsorily paid by the party, the evidence of such payment would be inadmissible before the jury. Upon the principle on which we should admit evidence of other sales between other parties of adjacent lots, this evidence was admissible, and none the less so because the rail road corporation were themselves the purchasers. 6. The next objection taken is that to the competency of an inquiry put to a witness, of the following purport: “ A witness who was a farmer, and had occasionally bought and sold land, was asked what, in his judgment, was the then value of his own land next adjoining the land of the petitioner.” This evidence does not come from an expert, or one properly entitled to give an opinion as an expert. Whether the presiding officer did or did not so consider him, is not quite clear. As to the competency of evidence of mere opinions, although the law of this Commonwealth is very liberal, more so than in some of our sister States, yet opinions are not deemed competent evidence, except when given by experts, unless upon some controlling ground of necessity, resulting from the nature of the inquiry. The evidence of opinion of the value of the property; that is the subject of the litigation, is of this character, and is admitted from the necessity of the case. ' Without it, you cannot, in many cases, bring before the jury such — 327 — facts as will enable them to render a verdict for the proper damages for the value of the article which is the subject of damages. But such evidence of mere opinion as to the value of property is to be confined exclusively to the subject in reference to which damages are claimed. If you would aid the jury by reference to other articles, or property similarly situated, the evidence in reference to such other articles or other property must be that of facts, and not opinions. It is only by reference - to facts that exist respecting the property, that a comparison is to be made that may aid the jury in estimating the value of the property in relation to which they are to assess damages. To allow any thing beyond this would be unnecessarily sanctioning the introduction of evidence of opinions of witnesses — evidence always somewhat objectionable in its character, and to be excluded as far as is practicable. We think it was not competent for the party claiming damages to introduce the speculative opinion of the witness as to the value of adjacent land, and especially his opinion of the value of his own land, and, by the effect of such testimony, form a standard of comparison by which the jury might estimate the value of the land which was the subject of controversy. This testimony, in the opinion of the court, ought to have been excluded. It was suggested, upon the argument, that the subsequent instructions of the presiding officer, as to the evidence of opinions, obviated the objection to the admission of this evidence. We are apprehensive that those remarks were not intended by him as excluding the evidence now under consideration. The jury were not instructed that the evidence was inadvertently admitted, but was now held incompetent, and to be rejected by them. This testimony having been improperly admitted, the verdict must, for this cause, be set aside, and the case sent to a new jury.* Footnotes [*] In the ease of James Brown vs. The Boston & Worcester Rail Road Corporation, argued and decided at this term, said Brown had obtained a verdict for damages caused by the construction of the respondents’ rail road in »uch a manner as to injure his land situate in the town of "Framingham. Th« — 328 — court set aside the verdict because a part of the jurors were taken from that town; the respondents having objected to the competency of those juror» oefore the jury was empannelled. 5. Bemis, for the respondents. Mellen, for the petitioner.