Gardner v. Inhabitants of Brookline

Colt, J. By the St. of 1872, o. 343, the town of Brookline was authorized to supply its inhabitants with water from Charles River, and to take by purchase or otherwise the real estate necessary for constructing and maintaining the works, and proper for raising, retaining, and distributing the water so taken. At the trial, it appeared that the town had previously taken and paid for another strip of land running through the land in question, within which it had constructed a filtering gallery, and obtained a large supply of water. A witness was called by the petitioner, who testified in chief, without objection, to the value of the land, in his opinion, as a source of water-supply. He was then, by two questions of the petitioner, asked what would be the effect upon the existing filtering gallery if similar galleries [362] or wells were constructed at a lower level on the adjoining land of the petitioner, which we understand to be the land for which she now seeks compensation. The judge properly refused to allow these questions to be put. The witness may indeed be permitted, or required, to give the facts and reasons on which his opinion is founded, as has been many times settled by this court. Hawkins v. Fall River, 119 Mass. 94, and cases cited. But the questions here put relate to the water-yielding capacity of a tract of land not in controversy, under a supposed and improbable condition of things. The power of the owner of the land taken to injure the proprietors of the adjoining land is a remote consideration, improper to be directly suggested by the petitioner to his own witness as an element of value. The question is, not what is the value and importance of the land to the respondent in view of the uses which it makes of adjoining land, but what is the fair market value of the land taken. Another witness called by the petitioner testified that the land taken was suitable for the production of cranberries. He was asked by the petitioner, what was the market value of cranberries at the time of the taking, in 1875; and this question was excluded. But, on cross-examination, in answer to the respondent, the witness said that cranberries were lower now than in 1875. On reexamination by the petitioner the question first put in chief was again excluded; and it appears to have been properly excluded each time. The land was not prepared or used for the cultivation of cranberries. The question put involved an inquiry into a great variety of collateral matters : the expenses and uncertainty of cultivation, the state of the cranberry market in 1875, and the average value of that crop on similar land. There must be a limit to questions concerning the possible future capacity of the land; and so it has been held that testimony of what would be the fair rental value of land, with a suitable and proper building upon-it, was too prospective and indefinite in its nature to be competent evidence of present value. Burt v. Wigglesworth, 117 Mass. 302. Nor was the question rendered admissible by the cross-examination. The market value or price of cranberries in 1875 is one fact; and the fact that they were lower in price now than they were in that year, is another and distinct fact, which, although [363] drawn out on cross-examination, does not make the former admissible. As to the testimony of the witness Marsh, we cannot say, from the facts stated, that it was not in the discretion of the judge to admit evidence of an actual sale, at or about the time, of land equally suitable for raising cranberries, situate in the adjoining town within a half a mile of Charles River, on which the land in question bordered. If the question was as to the value of building lots, the exact situation of the two parcels with respect to each other might be of more importance; but when it is as to the value of land of rare quality, which is adapted to the cultivation of cranberries, a different standard applies, and, if the land sold is in the same general locality and of the same peculiar quality, the price obtained may afford a just measure of the value of the land taken. Benham v. Dunbar, 103 Mass. 365. See also Chandler v. Jamaica Pond Aqueduct, 122 Mass. 305. The court permitted the respondent, upon filing an amended answer, to introduce evidence of the value of wood removed from the land and sold by the petitioner since the taking, on the ground that the testimony of some of the witnesses was of the value of the land with the wood upon it; and, upon this point, instructed the jury that if, in estimating the damages for the taking, such estimate included the value of the land with the wood then upon it, the value of the wood subsequently taken should go in reduction of such damages. As we understand the bill of exceptions, this ruling was sufficiently favorable to the petitioner. All parties apparently proceeded on the ground that the right of the town to take land under the act for the purposes named did not necessarily include the right to take growing timber. The petitioner was permitted by the town, without objection, to remove it after the taking. The authority given by the act was to take and appropriate so much only of the petitioner’s estate as should be necessary and proper to carry out the purposes therein stated. The right to take is limited by the public exigency, in the same way as it is limited when land is taken for highways, railroads and public sewers. Clark v. Worcester, 125 Mass. 226. The power to take an absolute estate in fee simple is not conferred unless such an estate is necessary to the enjoyment of the defined privileges. There is [364] nothing here to show that growing timber was necessary to the enjoyment of the respondent’s rights, or was intended to be included in the taking. The petitioner, in fact, did not object to the admission of the evidence on the ground that the title to the timber vested in the town, and must be included in the estimate of damages, although afterwards carried away by the petitioner, (see Old Colony Railroad v. Miller, 125 Mass. 1,) but only because it was immaterial. The evidence in this view, except as it furnished the means of correcting previous estimates which included the timber, was immaterial. But it was competent for this limited purpose, and was properly admitted, without regard to other grounds upon which the judge seems in part to have placed his ruling. ¡Exceptions overruled.