Cushing v. City of Boston

Devens, J. While the petitioner was entitled to “ all the damages done to ” him, “ whether by taking his property or injuring it in any manner,” a street having been laid out over his premises, yet the value of the land taken and the damages to the remaining estate were to be assessed according to the injury done at the time of the taking. Pub. Sts. c. 49, § 16. Parks v. Boston, 15 Pick. 198. Dickenson v. Fitchburg, 13 Gray, 546. Fairbanks v. Fitchburg, 110 Mass. 224. This general principle we do not understand to be disputed by the petitioner; but he contends that, as “nearly two years after the laying out of said street,” but before the trial, although six months after a former trial (in which the jury did not agree), and fifteen months after the bringing of the petition, the city had constructed a sidewalk along his land abutting on the street, and assessed, according to the statute and the ordinances of the city, one half of the cost thereof (over $200), to the petitioner, he was entitled to recover this sum, “ as a distinct and independent ground of damages sustained ” by him. This is, in effect, to contend that, although he was entitled to full compensation as soon as his land was taken, he is entitled to recover a definite sum of over $200 at the second trial, which he could not have recovered at the first, even if he might then have recovered for any possible future requisitions by the public authorities by reason of his ownership of the remaining land. It would also follow from his contention, that, if he had sold his remaining land after the street had been laid out and before the sidewalk assessment, while the purchaser would be compelled to pay it, the petitioner would be entitled to recover its amount. The expenditure for a sidewalk was not caused by the laying out of the street, except remotely, and might never have been required. It was occasioned by the action of public authorities, who were entitled indeed, on proper proceedings, by the laying out of the land as a street, to construct a sidewalk along the same, a part of the expense of which might be assessed upon the abutters, but who might not take such action for many years [320] thereafter, and perhaps never. Nor does it appear but that such construction was ordered by reason of facts which occurred subsequently to the laying out, as by then ascertaining the great use made of the street by passengers. The petitioner relies much on the rule which is established by several cases, that, where the erection and maintenance of a fence is the necessary, natural, and probable consequence incident to the taking of land for a highway, for the protection of the remaining land, it is an expense to be considered, and to a reasonable amount allowed, by the authorities by whom the way is established. Holbrook v. McBride, 4 Gray, 215, 220. Stone v. Heath, 135 Mass. 561. North Bridgewater Parish v. Plymouth, 8 Cush. 475. But this is the immediate result of the laying out of the way, and not a charge which had no existence at that time, and might never come into existence. In the case at bar, while the petitioner was not permitted to recover his cost for building the sidewalk, nor the expense of keeping it clear from snow, as independent and substantive elements or grounds of damage, he was allowed to put in evidence of such cost and probable expense, and was permitted to recover any damages for the diminished value of the remaining land which might be shown to have been occasioned by the “ probability that a sidewalk would afterwards be built, involving expense to the owner, either in the erection or care of it.” These instructions were sufficiently favorable to the petitioner. If the liability thereafter to build and keep clean a sidewalk in the street as laid out did not depreciate the value of his remaining land, there is no reason why he should recover, as an independent element of damage when his land was taken, the amount subsequently assessed upon him for the cost of such sidewalk, or the expense he might incur in its care. Whether the instructions were not more favorable than those to which the petitioner4 was entitled, and whether the probability of future public requisitions is an element of damage, and thus whether evidence of the cost of the sidewalk and of keeping it clean is admissible in connection with it, need not be considered. Old Colony Railroad v. Plymouth, 14 Gray, 155. Exceptions overruled.