Bemis v. City of Springfield

Devens, J. The certificate of the presiding officer at the trial before the sheriff’s jury brings before us the objections and exceptions to his rulings in seven distinct cases, tried together. While all are not applicable to each case, they may without difficulty be here discussed. I. The respondent objects to the ruling that “the petitions can be maintained under one or the other of chapters 43 and 44 of the Gen. Sts., and the amendments thereto or substitutes therefor.” The local legislation in relation to the powers of the city council of Springfield as to highways, whether such legislation [116] was previous or subsequent to the enactment of the Gen. Sts., is to be considered in connection with this ruling. By the St. of 1852, c. 94, § 14, the city council of Springfield has exclusive authority “ to lay out, alter or discontinue any street or way, the termini of which are entirely within the city, and concurrent power with the county commissioners to lay out any other highway in the city,” &c. The power thus granted is similar to that given by the Gen. Sts. c. 43, to the county commissioners in laying out, altering or discontinuing highways. For certain sections of this chapter, the St. of 1870, c. 75, is now a substitute. The petitions here set forth an order of the city council changing the grade of Lyman Street; and the question is presented, whether an alteration in the grade of a way is such an alteration as, under these statutes, entitles a person, dissatisfied with the estimate of his damages, to apply for a jury. It does not appear by the petitions, or otherwise, that this alteration was one made for the purpose of repairing the way. On the contrary, it is conceded by the respondent, in contending that these petitions cannot be maintained under the Gen. Sts. c. 44, that this alteration in grade was a radical change in the way, not made for the purpose of better adapting it to the uses for which it had been before intended, but to new uses ; that it was a permanent improvement, and not in any proper sense a repair. An alteration of such a character is one not to be made by a highway surveyor in the ordinary performance of his duties, but by county commissioners or municipal governments, under the larger powers which they possess. It is a substitution of one way for another, and the power to alter a way includes the right to make such an alteration, as well as the right merely to alter the course ol the way. In Bennett v. Worcester, 4 Gray, 359, while the point is not discussed nor decided, an alteration in the grade of a way is treated, in the opinion of Chief Justice Shaw, as an alteration of a way, such as that for which damages are provided by the Rev. Sts. c. 24, § 68. That it was contemplated by the Legislature that the power to change the grade of a street had been given by the Gen. Sts. c. 43, and also that the city council of Springfield possessed this power, are sufficiently shown by the St. of 1872, c. 334, § 4, by [117] the St. 1873, c. 126, § 6, and by the St. 1874, c. 275, all of which were previous to the order in this case. See also Powers v. City Council of Springfield, 116 Mass. 84, 87. As it is not disputed that the rule of damages is the same under the Gen. Sts. c. 43, or amendments thereto or substitutes therefor, as mider c. 44, we have no occasion to consider whether these petitions could also have been maintained under the latter chapter. 2. The question put at the trial to Mattoon does not fairly admit of the interpretation that the respondent would give to it. It was not an inquiry, what was the damage to those estates abutting on Chestnut Street or Lyman Street, if the whole damage from cutting down both streets was included •, but called the attention of the witness to the damage proceeding from the cutting down of Lyman Street, irrespective of any which the estates might have sustained from the cutting down of Chestnut Street. That it was thus understood by the witness appears by his reply, which limits his estimate of damages to the front upon Lyman Street. 3. ' The question, “ how much it would cost to erect a protecting wall on the Bemis property on Lyman Street,” is not shown to have been incompetent. While the damages to a petitioner are not to be measured by the cost of the improvements or changes which he may think desirable in order to adapt his estate to the new condition of the street, yet, in connection with evidence that such a wall was necessary, or that it was a reason able and economical mode of obviating the difficulty occasioned by the change of grade, such evidence might be competent, and it does not appear by the exception but that it was introduced in such connection. 4. The question addressed to the witness Parsons on cross-examination was properly allowed. It tested the judgment of the witness, and it directly tended to show that the cutting down of Lyman Street, independently of the fact that Chestnut Street was cut down, was an injury to the estates of some of the petitioners. 5. The evidence as to the amount of damages which had been assessed in favor of and paid to Mattoon and another and Bemis by reason of the cutting down of Chestnut Street, was also rightly [118] rejected. It had no bearing upon the question, what was the damage sustained by the cutting down oí Lyman Street, which was a distinct inquiry; and it was not rendered competent by reason that, previously to the offer of it, certain witnesses had testified on cross-examination that they were unable “to separate in their minds the damage done by cutting down one street from that done by cutting down the other.” It had no tendency to prove what, in their judgment, should be deducted from the estimate of the whole damages as made, by them, to show what other persons had estimated the damages which should be assigned to the cutting down of Chestnut Street. 6. The respondent objects to the sixth instruction, which has in reference alone to the petitions of Mattoon and another, of Phelps, of Mayo, and of Mayo- and another. By it the jury were informed that “ the only effect ” of the location of the Springfield, Athol and Northeastern Railroad upon the lands of the petitioners was to give the railroad corporation a right to take and use the lands for railroad purposes within the limits of its location, paying damages therefor. But the location had the additional effect to give the petitioners, as soon as it was made and of the date when it was made, a right to damages for that which was taken by the location. Gen. Sts. c. 63, §§ 21, 22. Hazen v. Boston & Maine Railroad, 2 Gray, 574. That for which the petitioners would be entitled to claim damages was, although technically an easement, a right thus acquired by the corporation to a use of the land, permanent in its nature and practically exclusive. The omission to inform the jury of this effect was not unimportant. The location of the railroad was filed on March 20, 1874, and the order to change the grade of Lyman Street, by which the petitioners alleged that their land was injured, was passed on August 24, 1874. When the damages of the petitioners as against the railroad corporation were assessed, the value of the property, in which it acquired an easement, would be estimated, unaffected by any injury from the cutting down of, Lyman Street. How much would have been deemed by the jury in such a case the value of the fee which would have been left to the petitioners, when their estates were subjected to this servitude, we cannot determine. It may well have been merely [119] nominal. If so, they would assess to the petitioners for the easements taken substantially the full value of their lands. Should the petitioners receive this, they would receive the value of their lands unaffected by any injury occasioned by the grading of Lyman Street; and might also recover under this instruction compensation for that injury. The jury should have been informed that the location filed operated to give these petitioners this claim against the railroad corporation, and that they should assess the injury to them so far as these portions of their estates were concerned in view of that fact, even if it were also true that the petitioners were still entitled to damages for injury to the portions covered by the location. As to those petitions which would be affected by the ruling which we deem erroneous the verdict should be set aside, while as to the others it should be accepted. Nor is there any difficulty in doing this, although the verdict as to all is upon a single paper; it is distinct and separable as to each petitioner. The petitioner Mayo owned lands which would, and others which would not, have been affected by this ruling; but as the verdict for him was in a single sum, it must be set aside, as it cannot be ascertained to how great an extent it was influenced by the ruling thus made. The result is, that as to the petitions of Mattoon and another, of Phelps, of Mayo, and of Mayo and another, the verdicts are set aside; as to those of Bemis and another, executors, of Hines and of Morrissey, the verdicts are accepted. Judgments accordingly.