Williams v. City of Taunton

Lord, J. 1. Two of the petitioners were asked, in cross-examination, what became of the loam taken from their respective lands. The question was clearly immaterial, and therefore not subject to exception. The answer to it was, in law, immaterial ; if, in fact, it was liable to be understood by the jury as derogating from the damages sustained by the petitioners, they should have objected to the answer, or, at least, have requested a ruling upon its effect; but they did neither; and the presiding judge, in his general ruling upon the petitioners’ claim, excluded the idea that the value of the loam thus received by the petitioner was to be deducted from or taken into consideration by the jury upon the amount of his damages. 2. On<= of the witnesses, who was also a party, was, when the work was done, a member of the common council for Ward 5 of the city of Taunton, and his land was within the limits of Ward 5. Evidence was offered of his declarations in reference to the locality of the works, and this was objected to. At the argument, it was contended that the evidence, if admissible at ad, should have been restricted to his case, and should not have bee a allowed to have any influence over the cases of the other petitioners; and that the evidence was not admissible at all, on the ground that he was then a public officer and that his declarations were to be presumed to be made in the public interest and not with reference to his private interest. The first objection is not open on this bill of exceptions. If his declarations were [40] admissible against him, and the other petitioners did not wish to be prejudiced by them, they should have asked for instructions restricting them to the case of the witness. The bill of exceptions does not show that this was done, or that proper instructions were not given. As to the other objection, if the public interest and the private interest of the witness were identical, there would seem to be no objection to the evidence. If, however, the several interests were in conflict, and he took part in the consideration of the subject, we see no reason why what he said and what he did, having a bearing upon the issue, should not be submitted to a jury. The standard of official virtue is not so high, that the court can say, as matter of law, that, when a public officer takes part in a matter in which he has also a private interest, such action is necessarily for the exclusive advantage of the public welfare and in - derogation of his private advantage. We think the party can take no just exception to the language of the presiding judge upon that subject. 3. A witness, agreed to be competent as an expert upon the subject, testified that, by experiments upon the land, the drainage of the remaining lands by the filter basin on the land taken could be determined. He was then asked, “ Has the level at which water stands under the soil been determined by experiment ? ” This question was objected to, unless the experiments were made upon the lands of the petitioners. The objection was rightly overruled. The right of a person, called as a witness, to give an opinion as an expert, or to testify to any conclusion to which his skill leads him, to state his reasons and the mode by which he arrives at his conclusions, has been many times considered by this court. It was thus held in a capital trial, against the objection of the prisoner’s counsel; Commonwealth v. Webster, 5 Cush. 295, 301; and has since been repeatedly so decided in civil eases, and exhaustive reasons therefor given by Shaw, C. J., in Dickenson v. Fitchburg, 13 Gray, 546, 555, 556. The testimony of the expert is commented on as if the witness had testified to the height at which water actually stood in land at Taunton, and that height determined by means of experiments in small boxes in Boston. No such evidence was admiti.ed or offered. The witness was asked a question of science or skill: '* Has the level at which water stands under the soil been deter [41] mined by experiment?” Not at Taunton, nor at Boston, nor at any other place, but generally; and, having answered the question affirmatively, he then proceeds to state how, in the classes connected with the Institute of Technology in Boston, he was accustomed to demonstrate, explain and illustrate the mode of proving the fact by means of diagrams, boxes, sand, gravel, &c., in his laboratory. 4. The only remaining objection to the admission of evidence was that which related to the distance from the petitioners’ land to certain public places, such as the Old Colony Depot, Taunton Green and Unitarian Church. The testimony offered was that of a civil engineer who had measured the several distances. The presiding judge admitted the evidence “ for the purpose of showing the relation of the petitioners’ land to the thickly settled parts of Taunton and public places of resort therein.” These may be, so obviously, elements of value of the land taken, that this court cannot say that the evidence is incompetent. 5. A long series of prayers for instructions was presented by the petitioners’ counsel to the presiding judge. These instructions were given substantially, except in so far as they were in conflict with this ruling, to which exception was taken, “ that the petitioners would not be entitled to the whole market value of their lands, if the jury find that on the whole the advantages exceed the injury, if any there is, to the remaining lands.” We understand this instruction to have been given not for the purpose of fixing a rule by which the jury were to assess the damages, but for the purpose of meeting a special proposition of the petitioners, substantially this: that the respondents were to pay for the full value of the land actually taken at all events, wholly irrespective and independent of the question of benefit or injury to the land not taken; and that, even if the land not taken was made better and more valuable by the taking, such benefits could not be taken into account by the jury, but the whole value of the land must be assessed; while, if the injury to the remaining lands was greater than the benefits, the excess of such injury over the benefits was to be assessed in addition to the value of the land taken. If the remaining lands, claimed to have been injured or benefited, were different lands from that which was [42] taken, there might be difficulty in thus laying down the rule; but the remaining lands were parcel of the land taken, and, in this view, we think the instruction was correct. It is to be observed that the only standing which the petitioners have in court is derived from the provisions of the act itself. The second section of the act has this provision : “ Any person injured in his property under this act, and failing to agree with said city as to the amount of damages, may have the same assessed and determined in the same manner as is provided where land is taken for highways.” It will be seen, from this provision, that it is unnecessary to determine whether the estate taken is called an easement, a base fee determinable upon a future contingency, or a fee simple. For all practical purposes, the condemnation of the property is a perpetual one, and was so treated by the presiding judge, and the jury so considered it under his instructions. What may be the technical name by which such right shall be called is immaterial. The statute does not provide that the petitioners shall recover the value or the price of the land taken, nor does it make any reference to the comparative amount of benefit or injury. It uses only the broadest and most equitable language. “Any person injured in his property” may have his damages “assessed and determined in the same manner as is provided where land is taken for highways.” When, therefore, a person is the owner of a tract of land, and a portion of that land is taken and the remaining portion is claimed to be injured, the entire tract, of which the land taken and the land remaining are severally parcels, is the property injured, and it is the extent of that injury which is to be determined. It is therefore a question simply of indemnity. What sum of money is an indemnity against the injury? Taking nothing but the language in which his right to damages is given, the actual injury to his property must be determined by ascertaining what sum of money will make his property as valuable as it was before it was interfered with. But we do not deem it necessary to place the decision wholly upon that ground. We think that the language of the act, “in the same manner as is provided where land is taken for highways,” is not confined simply to the petition for a jury, or to an assessment of damages by a jury; but that “ in the same man- [43] ner ” means under the same rules and principles of law so far as applicable to the subject matter. Various criticisms have been made upon the language of the rulings, which we deem wholly unfounded. It is said in argument that the language of the presiding judge, “ if the advantages exceed the injury,” is in conflict with the rule as declared in Upton v. South Reading Branch Railroad, 8 Cush. 600. This is not so. The presiding judge in this case gave the legal meaning to the word “ advantages,” and gave it correctly. In Upton v. South Reading Branch Railroad, the word “ advantages ” was not limited to its legal meaning, but embraced the general rise of property common to all estates in the vicinity. It is not necessary to notice particularly other similar exceptions. It is sufficient to say that the cause was submitted to the jury under instructions adapted to the case and which are unobjectionable in law, and that the various rulings upon questions of evidence were sufficiently favorable to the petitioners. Exceptions overruled.