Taft v. Commonwealth

Holmes, J. These are two petitions for the determination of damages under the Metropolitan Sewerage Act, St. 1889, c. 439, § 4. The first is for a triangular piece of land on Point Shirley at Shirley Gut, taken in fee simple for a sewer, etc. The other is for an easement of building and maintaining a sewer under a long strip of adjoining land alleged by the respondent to be a public way. The petitions were tried together, and the case is here on exceptions. The first exceptions were to allowing certain experts to testify how the taking of a part of the petitioner’s land for a sewer affected the value of the rest. The only ground stated for the objection in the first two instances, and seemingly the only one in the last, although that is not quite so clear, was that the witness was not qualified to state his opinion. We see no reason for revising the action of the presiding judge on this ground. It was said that the witnesses were not experts on the effects of sewers. But they had been admitted as experts on the values, and had testified on the general question without objection. We cannot say that it was wrong to allow any proper questions of detail. Experts may be asked the effect of a taking. Vandine v. Burpee, 13 Met. 288. Brainard v. Boston & New York Central Railroad, 12 Gray, 407. Dickenson v. Fitchburg, 13 Gray, 546, 557. Chandler v. Jamaica Pond Aqueduct, 125 Mass. 544, 552, 553. The next question with which we have to deal is more difficult. Whatever may have been the implied ground of the objection to the foregoing evidence, in one instance it was general in point of form. Later, the respondent asked for an instruction that the petitioner could not recover additional damages for any use which might be made of the land taken other than erecting buildings thereon. Also, that the jury could not consider the probability of smells, noise, or smoke as enhancing damages, even if not so offensive as to create a nuisance. These instructions were refused, and the respondent excepted. The testimony of the experts enhanced the damage to the petitioner’s remaining land from the fact that the part taken was to be used as a sewer, on various grounds, such as the possibility of a brick structure with pumping engines, (which there was no ground to anticipate on the evidence,) the possibility of a nuisance from an overflow — 547 — at Shirley Gut, (of which, at most, there was but a scintilla of evidence,) the interference with the street by necessary repairs, knowledge that the sewer was there, underground. The jury probably understood, from the instructions they received, that after having allowed the value of the land taken, and any harm to the remaining part in point of size, shape, etc., (Maynard v. Northampton, 157 Mass. 218,) they had a right to add any and all diminution in the selling value of the latter due to the prospect of a sewer, as we shall state hereafter, subject to the caution, based on Badger v. Boston, 130 Mass. 170, that they were not to consider the possibility of a nuisance being created by keeping the sewer improperly. We think that the questions raised by the instructions are fairly open. There is no doubt that they had a most important bearing on the amount of damages allowed. What the presiding judge had in mind evidently was a refined exception to a rule of uncertain scope. The rule denies the allowance of damages for some quasi nuisances, such as smells, etc., in proceedings under various statutes. Barnes v. New England Worsted Co. 11 Met. 570. Presbrey v. Old Colony & Newport Railway, 103 Mass. 1, 6. Fay v. Salem & Danvers Aqueduct, 111 Mass. 27. Proprietors of Locks & Canals v. Nashua & Lowell Railroad, 10 Cush. 385, 392. Massachusetts Central Railroad v. Boston, Clinton, & Fitchburg Railroad, 121 Mass. 124. Whether this rule would extend to a nuisance which would have been actionable but for a statute authorizing works of which it was a necessary consequence, is a question. The lines of decisions just referred to started from the assumption that the harm either was damnum absque injuria or remained actionable. Eames v. New England Worsted Co. 11 Met. 570, 572. But some statutes may authorize works such as we have supposed, and in such cases, in order to subject neighboring lands to the burden, it might be unnecessary, because impracticable, to file in the registry a description of the lands to be affected, such as is required when the surface of the land is to be flowed. Kenison v. Arlington, 144 Mass. 456. Again, no doubt the Legislature can change the law of nuisance to some extent without compensation. Sawyer v. Davis, 136 Mass. 239. Rideout v. Knox, 148 Mass. 368, 372. Miller v. Horton, 152 — 548 — Mass. 540, 546. But we are not aware that it has been decided that the principle of the Massachusetts decisions cited extends so far. In England the rule seems to be, that those damages can be recovered which could have been recovered at common law for an injury to land, or to an interest in land, had the acts which caused them been done without authority of statute. Caledonian Railway v. Walker, 7 App. Cas. 259, 293. Some of our decisions go even further than that, and no uniform principle has been established. Marsden v. Cambridge, 114 Mass. 490, 492. Woodbury v. Beverly, 153 Mass. 245, 247, 248. See Stanwood v. Malden, 157 Mass. 17. The exception to the Massachusetts rule denying damages for quasi nuisances authorized by statute is that some annoyances, which otherwise could not have been recovered for, may enhance the damages allowed in so far as they are brought nearer to the petitioner’s land by the taking of a part of it. The petitioner is “ entitled to recover, not only compensation for the land taken, but also for such injury to his remaining land as is caused by the appropriation of a part of it for the uses for which it is taken.” Johnson v. Boston, 130 Mass. 452, 454. Not, it will be observed, an arbitrary principle that taking part of a petitioner’s land lets in a claim to damages otherwise not allowable, (compare Blesch v. Chicago & Northwestern Railway, 48 Wis. 168, 189, 190,) but only that so far as increased proximity is the source of the trouble it may be allowed.for. The difference between the annoyance just outside the petitioner’s original parcel and the same in its intended place is the measure. Walker v. Old Colony & Newport Railway, 103 Mass. 10. The distinction, if difficult to apply, is logical with reference to matters in the nature of nuisances which would not have béen actionable apart from statute, but it must not be carried too far. Probably, when it becomes necessary to decide it, the law of Massachusetts will be found to be, that within the limits within which the Legislature can legalize what at common law would be a nuisance, no petition can be maintained if the quasi nuisance is the only damage inflicted on the plaintiff under the statute relied on. The infliction of such damage is not regarded as a taking of land sufficient to lay a foundation for proceedings. — 549 — If land is taken, the extent of the recovery may be affected by the language of the particular statute, but generally speaking, so far as by taking a part of the petitioner’s land a source of harm is brought nearer to the part which is left, the damage caused by the increased proximity may be recovered for, whether apart from the statute the source of harm would have amounted to a nuisance or not. The presiding judge had the principle of Walker v. Old Colony & Newport Railway in his mind; but we fear that the jury understood the last words of the charge on that point, taking it in the light of the evidence admitted under objection and of the instructions refused, as meaning that, if they found the remaining part of the petitioner’s land had been damaged by any of the lawful effects of any prospective sewer or its appurtenances in that neighborhood, either on the land or on the imaginations of men, if affecting the market value, they were to allow the whole amount. Under this head, in view of the evidence, the jury probably took into account, on the one hand, imagined nuisances which would have been actionable unless authorized by the taking, and on the other, possible quasi nuisances which would not have been actionable, and finally the detrimental effect on market values of the mere fact of there being a sewer in the neighborhood apart from any annoyances at all. Most of these evils, so far as not imaginary, are due to the taking of the easement in the long strip, not to the taking of the triangle. That enables the sewer to be built, and brings it nearer to the petitioner’s land than if it were on the triangle. The distinction is particularly important in view of the decision which we have reached upon the second petition. So far as appears, if there is to be an overflow, it is an incident of the use of the long strip, not of the use of the triangle. The only ground suggested for giving more upon the first petition than the value of the land taken, and the diminished convenience, if any, of the remainder in shape or size, was the possible construction of a building with pumping engines. There was no evidence that such a building was to be expected, and certainly a jury should not be told to increase the damages by considering what would be the most disagreeable use to which land — 550 — lawfully could be put by an owner. The general possibility of disagreeable uses is paid for in the price of the land. See, further, Fairbanks v. Fitchburg, 110 Mass. 224. We are of opinion that there must be a new trial on the first petition, and we do not deem it necessary or advisable to go further than we have done in answering the questions which we have suggested. Perhaps it would have been enough for us to say, that, as the cases were tried together, and as the second must be retried for reasons to be stated, justice requires that there should be a new trial in the first case also, inasmuch as the damages attributable to the taking of the triangle were not clearly distinguished from those belonging to the long strip. The other exceptions relate to the second petition. The first question is whether the judge ought to have ruled that the strip mentioned was a public way. So far as the evidence that it was so by prescription goes, no reason is suggested why the judge was not right in following the ordinary course, and leaving it to the jury. Apart from any question as to the truth of the evidence, and assuming that the jury would have been warranted in inferring that there was a way by prescription, as no doubt they would have been, they might have found the contrary, on the evidence that some uses were by the petitioner’s leave, and some were stopped by him, and possibly even they might have found that there was no defined way at all, but only free wandering by the guests of the hotel and others over sea-beach and upland of barren sand. They were warranted also in not interpreting the petitioner’s statement that the city always had a right of way through them, etc., as a concession of the point in dispute. But it was said, if not a public way by prescription, it was one by record, and the respondent relies upon a relocation in 1875, and another proceeding in 1884. The petitioner denies the jurisdiction of the county commissioners. In the case of the proceedings of 1875, the denial is based on the allegation that the branch road, if there was one, which ran through Taft’s land, was no part of Shirley Street, and so that the county commissioners’ act purporting to relocate it was void. The judge, in his charge, made the jurisdiction depend upon whether the road was travelled by the public and was known — 551 — as Shirley Street. The question is an embarrassing one. Of course a tribunal cannot establish its own jurisdiction by adjudicating it to exist. Adams v. Adams, 154 Mass. 290. Miller v. Horton, 152 Mass. 540, 548. No doubt, too, in an extreme case, at least, the objection that the alleged relocation really was an attempt to lay out a new and different way, would go to the jurisdiction. See Commonwealth v. Cambridge, 7 Mass. 158. On the other hand, one of the objects of a relocation is to make certain what before was doubtful, (Pub. Sts. c. 49, § 31,) and to establish it against and in favor of all the world, by a proceeding to which all interested are parties. If, under the name of jurisdiction, the validity of the proceeding is to be made dependent in every case upon proof that the lines established coincided with those previously existing, the proceeding is of very little value. It may be said that this consideration cannot be pressed to an alleged extension or change of terminus. Yet the terminus may have been the very point of uncertainty. There may have been conflicting evidence before the county commissioners in 1875, as there was before the jury in the trial of this case, as to what was Shirley Street. One of the reasons why it is held not to be necessary to set out the termini of the way named in a petition for relocation would seem to be the possible uncertainty of them. Hyde Park v. County Commissioners, 117 Mass. 416, 422. There is no reason to doubt that the county commissioners acted in good faith. The road in. question was a mere spur of Shirley Street proper, even if not part of it. The decision that it was part of Shirley Street was not absurd, even on the evidence produced at this trial, as to the state of things before 1875. If this reasoning is not sufficient to show that the adjudication of the county commissioners is valid as against all the world, we are of opinion that at least their decision must be held conclusive against a party who might have been heard in the proceedings which led to it. See State v. Rye, 35 N. H. 368, 377, 378; Blackstone v. County Commissioners, 108 Mass. 68; Perry v. Sherborn, 11 Cush. 388, 391; Old Colony Railroad v. Fall River, 147 Mass. 455; Brewer v. Boston, Clinton, & Fitchburg Railroad, 113 Mass. 52, 56, 57. If there was any failure to give proper notice, which we do not intimate, or other defect in the form of the proceedings — 552 — which would not be disclosed by the record, advantage can be taken of it only by certiorari. Foley v. Haverhill, 144 Mass. 352. In the view which we take of the effect of the record of 1875, it is unnecessary to consider the record of 1884, or the instructions to the jury on the matter of prescription. But we think it desirable to add that the instructions laid it down too absolutely, that if the public travel bears an insignificant proportion to the private travel over a road, no public way will be established by prescription. In making this correction we do not forget the similarity of the instructions before the court in Weld v. Brooks, 152 Mass. 297. We agree that the proportion is a matter to be considered. But it is not necessarily decisive in the case of a remote and barren point, where the greater part of the travel of course is that of visitors to the hotel situated there. See McCreary v. Boston & Maine Railroad, 153 Mass. 300, 305. Exceptions sustained.